Courts are increasingly ruling on the adequacy of parties’ privilege-log designations. As discussed in a prior post, Roger Clemens learned the hard way that failure to submit a privilege log results in privilege waiver. My article, Ignoring Privilege Log Obligations May Prove Costly, also details issues arising from inadequate privilege-log designations.
But does an adequate privilege log necessarily require a party to list each document? Or, may parties identify privileged documents by categories or topics? And does a party have to identify
documents where the identification will itself disclose privileged information? The Court’s decision in Manufacturers Collection Co. v. Precision Airmotive, LLC, 2014 WL 2558888 (N.D. Tex. June 6, 2014), provides helpful guidance on these topics. You may access the opinion here.
Privilege Log Rule
FRCP 26(b)(5) requires a privilege-invoking party to expressly make the privilege claim, and “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” In Manufacturers Collection, the third-party plaintiff argued that the third-party defendant violated this rule by simply identifying a category of documents as privileged.
Document-by-Document?
The Court, however, rejected the argument that FRCP 26(b)(5) always requires a document-by-document privilege designation. Citing SEC v. Thrasher, 1996 WL 125661 (SDNY Mar. 20, 1996) and heeding the Advisory Committee’s qualification that “courts retain some discretion to permit less detailed disclosure in appropriate cases,” the Court described two circumstances where a document-by-document approach was inappropriate:
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Where a detailed disclosure would, in effect, reveal the putatively privileged information; and
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Where a document-by-document listing would be unduly burdensome and the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing the privilege claim.
Under these standards, the Court permitted the third-party defendant to identify withheld documents by category.
Some Limitations on Categorical Approach
But this approach did not relieve the party of identifying all of the senders and recipients of communications (even if not by a particular document reference) so that the objecting party could determine whether privilege waiver existed.
Nor did the categorical approach permit the party to identify general categories, as the Court required it to breakdown the categories into subcategories, such as date range and type of authors and recipients, and break out each type of claimed protection, such as the attorney–client privilege and the work-product doctrine.
Even with the subcategories admonition, the Manufacturers Collection decision serves as good authority for those parties faced with crafting a privilege log for voluminous information and where providing a document-by-document listing would itself reveal privileged information. Practitioners should keep this decision handy.