Known for his unmatched oratory skills, both in the U.S. Senate and before the U.S. Supreme Court, scholars regard Daniel Webster as one of America’s greatest lawyers. And while he possessed natural talent that “can’t be taught,” Webster knew that lawyers become great only with a disciplined work ethic and a willingness to do the grunt work. In fact, he gave us this famous, lasting quote:
If he would be a great lawyer, he must first consent to become a great drudge.
Richard L. Marcus, Reining in the American Litigator: The New Role of American Judges, 27 Hastings Int’l & Comp. L. Rev. 3, 10–11 (2003).
This quote, of course, is a good segue to a lesson in privilege log preparation.
Privilege Log Rule
FRCP 26(b)(5) and its state-law counterparts provide privilege-log requirements to parties withholding privilege-protected documents. Those parties must “describe the nature” of those documents “in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the claim.”
This rather non-specific rule belies lawyers’ monotonous and time-consuming task of privilege-log preparation. And one party’s two-time failure to provide a thorough privilege log, including the use of a software-generated log, drew a federal judge’s ire. LaVeglia v. TD Bank, 2020 WL 127745 (ED PA Jan. 10, 2020). You may read the opinion here.
Software-Generated Privilege Log
In an employment-discrimination case, the defendant-employer produced a privilege log that, according to the court, “did not provide any information to establish the foundation underlying a privilege claim.” The log identified “Attorney Client” and “Attorney Work Product” as the protections but provided little additional explanation.
For example, the log identified email senders and recipients by email address rather than by name and title. The court noted that this log “appears just to have captured the fields from [defendant’s] document review software but provided no explanation as to the basis for any privilege assertion.”
You may review the privilege log here. What do you think?
At the court’s direction, the defendant submitted an amended privilege log, which you may review here. The amended log provided more detail about email senders and recipients, but it only provided that information for the top email in an email string “even when that email is not the basis for the assertion of privilege.”
The court found this inadequacy perplexing. It noted the defendant’s “continued indolence in preparing its privilege log and its persistent failure to abide by Federal Rule 26(b)(5).” And, using Daniel Webster’s quote above, said this—
No doubt, the preparation of privilege logs is tedious, and electronic discovery is the bane of many a lawyer’s existence. Nonetheless, as Daniel Webster said, “If he would be a great lawyer, he must first consent to become a great drudge.” Preparation of privilege logs is the type of drudgery to which lawyers must pay careful attention if they want to call themselves “great.”
Ire without Consequences?
Despite this admonition, the court did not impose any penalty on the defendant. It ordered the defendant to submit a second amended privilege log. And it ruled on various privilege claims after conducting an in camera review.
Indeed, the court ordered production of certain Staff Selection Worksheets that TD Bank employees provided to defendant’s in-house lawyer prior to a reduction-in-force and reorganization, only to reverse that decision upon reconsideration. You may read the reconsideration order here.
Daniel Webster’s Lesson
The LaVeglia case provides lessons even if it contained no adverse consequences. Privilege log preparation is drudge work. But substituting software-generated logs for a lawyer’s detailed preparation may prove counterproductive and, in the end, more costly—perhaps in more ways than one.
So, in sum, let’s be a privilege-log drudge.