What’s Good for the Privilege-Log Goose is Good for the Privilege-Log Gander

Many privilege-log commentaries originate from courts chastising parties for submitting inadequate privilege logs. But this commentary has a different origin.

In what one could argue is a developing privilege-log standard in the Sixth Circuit, a Michigan federal court explained the privilege-log requirements and found a party’s log “substantially compliant.” Carhartt, Inc. v. Innovative Textiles, Inc., 333 F.R.D. 118 (ED Mich. 2019). Available here.

And if there was any chastising, the court aimed it at the challenging party, which submitted its own privilege log using “identical descriptions that it now complains are vague and imprecise.”

Let’s analyze what the court liked about this privilege log.

The Imprecise Rule

FRCP 26(a)(5) and many state civil-rule equivalents require a party making a privilege or related protection claim to “expressly make the claim” and “describe the nature of the documents” not produced. The Carhartt Court noted that this rule “does not delineate the precise information that must be contained in a privilege log.”

Consequently, “there is understandably tension between what a requesting party and a producing party might consider the minimum standards for disclosure.”

Emerging CA6 Standard?

The Carhartt Court reviewed privilege-log decisions from CA6 and a few CA6 USDCs and identified these logging requirements for documents that a party withholds as privileged:

  • Date.
  • Author and all recipients of the document, delineating between sender and receiver, and their capacity, title, or positions and roles, including attorneys.
  • The document’s purpose and subject matter, or summary of its contents, but an email’s subject line is insufficient.
  • The nature of the privilege asserted.
    • If the attorney–client privilege, the log must identify whether the communication sought or conveyed legal advice.
    • If the work-product doctrine, the log must summarize whether the document contains mental impressions, conclusions, opinions, or legal theories.

Substantially Compliant

The Carhartt Court reviewed the plaintiff’s privilege log, available here, and found it “substantially compliant” with CA6 case law. The entries identified the document’s author; creation date; the recipients, including carbon copies; whether the sender or recipient is an attorney; the type of document (e.g., email chain); the privileged claimed; and why it claimed privilege protection.

Email Attachments

The log did not, however, contain detailed descriptions for email attachments. We know that parties must prove that email attachments are independently privileged rather than relying on an email’s privilege nature.  See my post, Developing Issue: Attachments to Emails Not Necessarily Privileged, for more information.

But here, the court found that, for privilege-log purposes, the attachments “are subsumed under the emails to which they are attached and subject to the same claim of privilege as the principal document.”

Goose/Gander Dichotomy

The plaintiff also defended its privilege-log descriptions by comparing them to the defendant’s privilege-log descriptions. And guess what? This comparison revealed that the defendant “used identical descriptions” in its privilege log. The column headings were the same; the privilege types were identical; and the privilege descriptions contained the same language.

And the defendant similarly listed the email attachments under the principal document without any additional or superfluous description.  Review the defendant’s privilege log, available here, and see what you think.

This comparison left the court “with a classic goose/gander dichotomy.” While not necessarily dispositive, this comparison bolstered the court’s substantial compliance finding. The court noted that the defendant’s complaint about the plaintiff’s privilege-log deficiencies “rings hollow when its own log is identical.”

And when you contemplate this goose/gander dichotomy, do you, like me, think about this Seinfeld scene?

Another Comparison

In my post titled Software-Generated Privilege Logs and “Continued Indolence”: A Lesson from Daniel Webster, I reviewed an opinion criticizing a party for submitting a privilege log generated from document-review software. The Carhartt plaintiff (and defendant), by comparison, took the required time to meticulously prepare a privilege log that met the rule’s standards.

Consider these distinctions when preparing your next privilege log.

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