Privilege logs require more than merely saying a prospectively privileged document is an “attorney-client communication.” This requires litigants to conduct privilege review with far more analysis than simply tagging discovery “Attorney Client Privilege” or “Work Product Conduct.” The case of United States v. State & La. Dep’t of Health & Hospitals highlights the importance of effective discovery review in creating privilege logs.
The Defendant produced a 2,941 PAGE privilege log that claimed the discovery was protected by the attorney-client privilege and/or the work product doctrine. United States v. Louisiana, 2015 U.S. Dist. LEXIS 100238, *3 (M.D. La. July 31, 2015).
Following in the wake of a nearly 3,000 page privilege log came a motion by the Plaintiff to compel a “Proper Privilege Log,” which was answered with a new privilege log of only 2,302 pages, plus a new 259 page privilege log. US v. Louisiana, *3-4.
Before discussing any privilege review, it is important to define the privileges in a case. As the Court explained, “[t]he attorney client privilege generally protects confidential communications made by a client to his lawyer for the purpose of obtaining legal advice. The work product doctrine protects materials prepared in anticipation of litigation that reveal the “mental impressions, conclusions, opinions, or legal theories of an attorney.” Id, at *14, citing Hodges, Grant & Kaufmann v. United States Gov’t, 768 F.2d 719, 720-21 (5th Cir. 1985) and Conoco Inc. v. Boh Bros. Construction Co., 191 F.R.D. 107, 118 (W.D. La. 1998).
The Plaintiff challenged the privilege log as being “insufficiently specific,” citing examples that privileged claims were simply “NVRA” or “NVRA Spreadsheet,” “Voter Registration Form,” “Final NVRA-2013,” “NVRA Documents.” The NVRA is an acronym that the Defendant had to follow. Needless to say, the Court agreed these claimed privileges were insufficient. Id., at *9-10.
Rule 26(b)(5) of the Federal Rules of Civil Procedure requires a privilege log to: “(i) expressly make the claim” of privilege; and “(ii) describe the nature” of the withheld information in a way that “will enable other parties to assess the claim.” The test for determining whether a privilege log is adequate is whether each entry states sufficient facts that establish each element of the privilege. This requires a specific description of why something is privileged, not a “conclusory invocations of the privilege or work-product rule.” Id., *6-7. Simply put, lawyers cannot say, “work product doctrine” like they are magic words to ward off opposing counsel.
The privilege log also lacked detail with the identities and roles of each sender and recipient. Id., *11. As such, there was no way for the Plaintiff to determine whether the claimed privileged information was actually covered by the privilege. Simply put, you need to state that a attorney-client communication is actually with an attorney either seeking or receiving legal advice.
The Court’s in-camera review of 40 claimed privileged documents showed serious problems with the privilege log, because there were communications not with any attorneys, emails regarding scheduling of training, reports with factual information, messages on compliance procedures, and apparently unrelated email. Id., at *13-14.
The Court held that many of the sampled documents did not fall under the attorney-client privilege or work-product doctrine, because the communications were internal communications. Many of the communications did not involve any lawyers, did not suggest an attorney-client relationship, and were not seeking legal advice. Moreover, the messages did not contain mental impressions of any lawyers. Id., at *15-18.
Bow Tie Thoughts
Privilege review cannot be haphazard. The litigation team should define the possible privileges in the case, whether there are spouses texting each other or someone emailing their pastor for spiritual advice. This further requires setting up the document review issue coding, so information is properly identified, tagged, and defined in a way to “enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5).
There are several ways to set up issue coding where a party can “(i) expressly make the claim” of privilege; and “(ii) describe the nature” that “will enable other parties to assess the claim” under Federal Rule of Civil Procedure Rule 26(b)(5). For example, let’s code for the attorney-client privilege. While state laws vary, the attorney client privilege requires at least an email between a client and lawyer, with the client seeking legal advice, or the lawyer providing legal advice. Coding could be set up as follows: Attorney Client Communications, with sub-issues, “Communication from Client to Lawyer Seeking Legal Advice, or “Communication from Lawyer to Client Providing Legal Advice.”
These tags would give detail to the privilege log, but still more is required. An additional free text note field would need to be added that could contain “sufficient facts that establish each element of the privilege.” A review team would need to decide at what stage of review they want reviewers adding such detail to the database. Some might find it is advantageous to have lawyers go into such detail while conducting their initial review, others might elect to have a privilege review team review everything tagged as privilege to provide sufficient facts in the notes to explain the claimed privilege.
The privilege log can be exported from most litigation support databases in Excel. The privilege log should include fields such as the Production Number (or Bates), Email From, Email To, Subject, Date Sent, Date Received, and any other relevant field, minus the body of the message. This information should provide both the requesting party and the Court enough information to evaluate whether the claimed privilege applies to the withheld discovery.
There are multiple ways to build a privilege log in a discovery review application. However, whichever method you select, think it through with the requirements for privilege logs and the privileges in mind.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.