Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of June 15-21. Here’s what’s happening.
On the EDRM Blog, Michael Berman writes about a Florida federal court ruling in Gilbane Bldg. Co. v. School Bd. of Broward County that a defendant’s privilege log was partially inadequate—making decisions across six critical areas regarding privilege assertions.
What happened?
In this case, the plaintiff challenged several aspects of the defendant’s privilege log. The court then evaluated six discrete issues:
- Email addresses – The court denied the plaintiff’s demand that the defendant’s privilege log include email addresses for senders and recipients listed on the log. The court stated there’s no requirement to include sender/recipient addresses and, more importantly, the plaintiff offered no legal argument to support its request.
- Role of email participants – This request, for the privilege log to identify the relationship between senders/recipients and the parties, was granted in part. The court required the defendant, within seven days, to identify only individuals whose roles can’t be easily determined by the plaintiff.
- Email chains vs. separate entries – While the plaintiff wanted the defendant to log each email message separately, the court ruled it is permissible for the defendants to log email chains as single entries only if the subject matter is consistent and descriptions are first improved upon.
- Provide date of “imminent” litigation – This point was moot: The court found the defendant had already provided this information.
- Subject-line descriptions – Defendant provided the exact subject line of each privileged email, but the court agreed with the plaintiff that the subject line descriptions alone were too vague (“RE: Stranahan High School – Division 15 Balance”) and required more detailed entries to assess confidential legal content.
- In-camera review – The court declined to consider an in-camera review until a compliant log was submitted and parties had conferred.
Why the ruling matters
- Privilege logs must meaningfully inform. Simply listing sender/recipient names or subject lines isn’t enough—logs must enable the receiving party and the court to assess the basis for the claimed privilege.
- Targeted detail is required, not blanket omissions. Identifying key roles, breaking out chains appropriately, and enhancing descriptions ensures transparency and reduces needless disputes.
- Courts won’t do your work. In-camera review isn’t a shortcut; parties must first attempt to meet standards collaboratively before seeking judicial intervention.
Takeaways for legal teams
- Audit your logs now: Check entries for vague descriptions, missing roles, or overbroad chains.
- Plan for iteration: Be ready to adjust logs after meet-and-confer discussions; proactive correction avoids motion practice and delays.
- Consider technology assistance: Generative AI tools are now being used to assist case teams with identifying privilege and creating first-pass privilege log descriptions; consider using advanced technology to help augment the human review for these types of documents.
Other recent eDiscovery news and headlines:
[View source.]
