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If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law
In United States v. Louisiana, 11-470-JWD-RLB. (M.D. La. July 31, 2015), Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of “insufficient descriptions” within the privilege log’s entries.
In this enforcement action for declaratory and injunctive relief under the National Voter Registration Act of 1993 filed by the plaintiff in 2011, the defendant submitted a 2,941 page privilege log on February 6, 2015 in response to the plaintiff’s second Requests for Production which listed email communications and their attachments, that the plaintiff claimed were protected from production by the attorney client privilege, the work product doctrine, and the joint defense/common interest privilege.
On February 23, the plaintiff informed the defendant that its privilege log did “not contain a sufficient amount of information for [the U.S.] or the Court to be able to make an independent privilege determination as to the applicability and validity of the asserted privilege”, complaining about the privilege log’s failure to include: (1) job titles of the listed recipients, including whether any recipient was acting in the capacity of an attorney; (2) descriptions for most of the listed email’s attachments; and (3) sufficiently detailed descriptions of the communications referenced. Then, on April 17, the defendant gave the plaintiff an updated privilege log, which deleted “over 1500” communications and documents and also included brief descriptions of the email attachments listed in the log, reducing the overall privilege log to (a mere) 2,302 pages of entries. Still, the plaintiff filed a Motion to Compel a Proper Privilege Log.
On May 22, Judge Bourgeois denied the motion to the extent that it sought an order compelling the defendant to produce an entirely revised Privilege Log, noting that the plaintiff “only provides 13 examples of ‘insufficient descriptions’ that apparently account for ‘hundreds if not thousands’ of the privilege log’s entries” and rejected the plaintiff’s “sweeping argument” to order the defendant to revise every entry of its privilege log. Judge Bourgeois did rule that the plaintiff “may file a renewed Motion to Compel by Friday, May 29, 2015, citing up to 40 specific entries in DHH’s privilege log, which are exemplary of the entries it challenges as insufficient.” The plaintiff did that, and the defendant then submitted for in-camera review the documents described in the 40 privilege log entries.
With regard to the defendant’s privilege log, Judge Bourgeois noted that the “challenged entries are not described with sufficient detail for either the Court or the United States to evaluate the applicability of the attorney client privilege or work product doctrine”, that, in several instances, “the privilege log includes some, but not all of the senders or recipients of a communication” and that it also “fails to sufficiently explain the role of each identified recipient and sender with respect to communications with in-house counsel”.
With the “benefit of being able to review (in-camera) the documents described in the 40 entries at issue”, Judge Bourgeois concluded that “many of these documents do not fall within the scope of the attorney client privilege or work product doctrine” and was “convinced that the overwhelming majority (if not all) of the withheld 40 documents, do not concern the legal advice of counsel as it relates to this litigation or counsel’s strategy for trial.”
As a result, Judge Bourgeois found that “DHH acted unreasonably in preparing the privilege log and asserting its claims of privilege”, but was “reluctant to find a complete waiver of privilege as to all of the documents described” in the log. Instead, Judge Bourgeois ordered the defendant to reassess its claims of privilege and notify the plaintiff by August 17 of previously contested items for which it withdraws its claims of privilege and produce those documents OR provide the plaintiff with a supplemental privilege log containing sufficient information to allow the plaintiff to assess the defendant’s claims of privilege.
So, what do you think? Was that the correct call? Or should the court have waived privilege for all of the documents contained within the privilege log? Please share any comments you might have or if you’d like to know more about a particular topic.
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