Court Says Company Has “Duty” to Provide Privilege Log in Response to Gov’t Subpoena. Is Waiver Next?

FRCP 26(b)(5)(A) requires litigation parties to submit a privilege log describing privilege-related objections to discovery requests.  And FRCP 45(e)(2)(A) imposes the same privilege-log requirement on third-parties responding to subpoenas.  But what are the privilege-log requirements for entities responding to an administrative agency’s subpoena?  Will the failure to produce a privilege log at the agency level result in privilege waiver?

The federal court in Memphis has ruled that an employer must produce a privilege log when withholding documents in response to a NLRB subpoena.  This requirement arises even though the court acknowledged that only Article III judges, not ALJs, have authority to rule on privilege claims.  NLRB v. NPC Int’l, Inc., 2017 WL 634713 (W.D. Tenn. Feb. 16, 2017).  You may read the decision here. More…

Privilege-Log Designations: Categorical or Document-by-Document?

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 identifypointing_at_chalkboard_text_10562 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.

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.

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:

  1. Where a detailed disclosure would, in effect, reveal the putatively privileged information; and

  2. 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. 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.

Five Cases, Five Lessons: Emails and Privilege for In-House Counsel

Courts employ a heightened standard when companies attempt to shield their employee–in-house lawyer communications under the attorney–client privilege. The dominant reason for this scrutiny is the recognition that employees often involve in-house counsel in business and legal-related conversations, forcing courts to scrutinize whether the putatively privileged communication pertained to legal or business advice.Legal Advice Computer Key In Blue Showing Attorney Guidance

Emails, which serve as the primary (and too often exclusive) means of communications, exacerbate the business–legal dichotomy because they offer employees an easy avenue to “run a (business) issue by” the in-house lawyer. But emails also increase the chances of privilege waiver due to the lawyer’s lack of, or loss of, control. Employees may easily copy or blind copy non-lawyers with an email or forward an email to internal and external colleagues without restraint.

Unsurprisingly, courts face an increasing number of discovery-privilege disputes that involve email communications. Email privilege disputes do not necessarily arise because an email is involved—indeed, an email is, at bottom, simply a form of communication. But privilege issues that otherwise may not ripen for dispute resolution arise because the communication occurred via email.  In my latest article, Emails and Privilege for In-House Counsel, published in ALM’s
The Corporate Counselor law journal newsletter, I briefly review five 2013(ish) cases involving privilege issues that arose in the email context, and offer take-aways for in-house counsel’s use in 2014 and beyond.

You may access the article here.  I hope you enjoy the read.  And for other posts pertaining to emails and the attorney-client privilege, see my posts about corporate executives’personal emails on company networks, dual-purpose emails, and why emails, privilege, and in-house lawyers present a tricky mix.