A Defendant claimed they did not have to provide a privilege log pursuant to Federal Rule of Civil Procedure Rule 26(b)(5)(A)(ii). David Mizer Enters. v. Nexstar Broad., Inc. (C.D.Ill. Aug. 31, 2016, No. 14-cv-2192) 2016 U.S. Dist. LEXIS 117076, at *23-26.
Let’s just say this is a non-traditional approach to withholding privileged documents.
Compliance with Rule 26(b)(5)(A)(ii) requires a party that withholds information based on a privilege, to describe the information not produced to assess the claimed privileged, while not actually revealing the privileged information. David Mizer Enters., at *24.
Privilege logs traditionally “particularly and clearly sets forth the specific grounds for asserting privilege or protection” for each item withheld. David Mizer Enters., at *25-26.
The Court twice ordered the Defendant to produce a privilege log for withheld information based on the attorney-client privilege. David Mizer Enters., at *24-25. The Defendant instead sent the Plaintiff redacted emails that contained the date of the message, the sender, names of recipients, and subject line. David Mizer Enters., at *25.
The Court could not tell whether the redacted emails contained sufficient information for the Plaintiff to determine the validity of the asserted privilege. David Mizer Enters., at *26. As such, the Defendants were ordered to produce a privilege log with the following information:
1) The privilege asserted;
2) A general description of the document by type (e.g. letter, memorandum, report);
3) The date of the document;
4) A general of the subject matter of the document;
5) The name and job title of the author or originator of the document; and,
6) The name of the person who received a copy of the document and their affiliation with the Defendant.
David Mizer Enters., at *26.
Bow Tie Thoughts
No one goes to law school with dreams of conducting document review. There are no lawyer movies showing attorneys tagging emails “responsive” and issue coding for “relevance.” Preparing a privilege log is a task that is paramount in importance, but can be a voyage in monotony.
Attorneys should define what privileges they should expect in a case. Are there spousal communications? Trade secrets? Medical records?
Knowing what to expect can help develop coding protocols to identify privileges for compliance with Federal Rule of Civil Procedure Rule 26(b)(5)(A)(ii).
I have outlined the importance of creating privilege review in prior blog posts and on the Carden Rose blog on preparing privilege logs during document review. Please check these out for more information for my thoughts on privilege review.
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, the Web 100 from 2017 to 2018, 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.