Given the bare bones nature of many privilege logs, courts sometimes may be called upon, or themselves decide, to review withheld documents in camera to assess the grounds for the documents’ withholding. A handful of courts...more
Corporate litigants’ privilege logs often trigger privilege disputes about internal corporate communications not involving a lawyer — because the log does not mention a lawyers’ participation. But there are at least two...more
Every court seems to require litigants to log documents they withhold based on privilege or work product claims. Perhaps not surprisingly, hardly any log goes unchallenged by the adversary. Most of these disputes eventually...more
Last week’s Privilege Point described one court’s incredible requirement that litigants identify everyone who learned of a withheld document’s content — even if they were not shown as a recipient....more
It seems obvious that corporations do not waive privilege protection by disclosing privileged communications to their own board members. But what about outside board members receiving such communications where they work or...more
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary...more
In earlier times, litigants essentially trusted each other to withhold (without identifying) responsive documents protected by the attorney-client privilege or the work product doctrine. Now every court seems to require a...more
Because privilege logs necessarily contain logistical but not content-based information about withheld documents, adversaries sometimes challenge privilege protection because no lawyer sent or received a withheld document....more
One widespread misperception about attorney-client privilege and work product doctrine assertions is that the Federal Rules require a privilege log. As one court bluntly put it, "no where in Fed. R. Civ. Pro. 26(b)(5) is it...more
Although the Federal Rules do not explicitly require privilege logs, every court seems to do so. Most courts require such logs to include predictable data, but some courts require logs to provide data that seem largely...more
Given privilege logs' listings of withheld documents' authors and recipients, it should come as no surprise that adversaries frequently challenge privilege protection for documents not sent by or to companies' lawyers. In...more
Although the federal and most if not all state rules do not explicitly require privilege logs, all or nearly all courts demand that parties withholding protected documents describe them with specificity in a log. And all...more
Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the...more
Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.
In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D....more
Among administrative law judges, magistrate judges, and Article III judges involved in administrative issues, who can make privilege calls?
In NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138...more
Because privilege logs generally require withholding litigants to identify emails' senders and recipients, the absence of a lawyer's name often triggers discovery skirmishes. Not surprisingly, the withholding litigants'...more
Courts frequently deal with litigants' tardy or inadequate privilege logs. Among other things, they must decide the standard of review for a magistrate judge's initial determination; who has jurisdiction to impose sanctions;...more
Unless an adversary's entire log clearly falls below the required specificity standard, litigants generally must object to specific log entries rather than challenge the whole log. ...more
The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log,...more