[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide declarations in which they swear they are telling the truth about complying with their discovery obligations.”
The pertinent issue involved categorical privilege logging. Defendant did not want to log privileged communications after a date certain, such as after plaintiff’s demand. However, the court wrote that defendant’s date certain was a shifting target.
The District Judge had ordered the parties to meet and confer concerning, among other things, ESI and privilege logs. In the court’s words, “things went off the rails….” A few months later, plaintiff asserted that defendant refused to produce a privilege log and the case was referred to a U.S. Magistrate Judge who wrote: “As is often the case with discovery disputes, judging by their submissions on this dispute, the attorneys appear to be involved in two completely different cases.”
After addressing an unrelated dispute, the court wrote: “Then there’s the privilege log squabble. Judge Blakey ordered the parties to meet and confer over it, and although plaintiff claims they have, it looks more like they have not, at least not in ‘good faith’ as Local Rule 37.2 demands. The ‘good faith’ requirement of the Rule is significant and demands more than empty adherence to a meaningless form.”
Substantively, on the logging issue, Defendant asserted that it need not log communications with counsel after either plaintiff’s demand letter, or alternatively, after plaintiff filed a charge of discrimination, or, alternatively, after suit was filed.
The court was skeptical:
Defendant is also a bit vague – and improperly so – about why it shouldn’t have to produce a privilege log for – we’ll say – post-complaint exchanges with counsel. Defendant asserts that the privilege log “would not be probative of any issue nor is it proportional to the discovery needs in this case.” …. But a privilege log isn’t supposed to be “probative of any issue”, it’s supposed to be designed to support claims of privilege; to “enable other parties” – and the court – “to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A)(ii). It’s also unclear how the compilation of a privilege log is not proportional to the discovery needs of this case because defendant doesn’t offer anything further. It’s just an unadorned, boilerplate objection.
Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024)
Defendant pointed to a number of authorities supporting its position. And, the court amplified those citations, writing that “the trend – if it can be called that – goes well beyond a handful of cases,” pointing to local rules and other decisions supporting that argument.
The court wrote that:
There is a sliding scale at work here. Once litigation commences, it becomes more and more likely that documents and communications between a party and its counsel qualify as privileged, and documents created by counsel qualify as “work product.” Such materials would probably be “relevant,” insofar as they contained some discussion of the subject matter of the dispute; but also they would likely have no direct relation to the actual events that gave rise to the underlying dispute…. And how does one describe those post-Complaint exchanges sufficiently to support a claim of privilege without revealing too much. One can imagine a rather unhelpful privilege log with scores of entries reading “legal advice re: plaintiff’s termination.” Such a log would be all but useless….
Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024)
Interestingly, in considering an “all but useless” log, the court also employed what I will call a “rough justice” analysis to plaintiff’s demand for a better log from defendant:
And, coincidentally, that’s the type of log the plaintiff has produced, only a little worse…. If the plaintiff really wants a privilege log from the defendant for all communications after the plaintiff’s attorney contacted defendant’s counsel, plaintiff has a lot more work to do on his own privilege log.
Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024)
The court then wrote that the parties had not conferred in “good faith”:
While I am prepared to make a ruling as to the privilege log issue, I have the impression that the parties never quite complied with Judge Blakey’s Order that they meet and confer over the issue; at least not in “good faith” as was implicit in the Order and explicit under the Local Rule. Good faith isn’t evinced by both sides simply digging in and refusing to budge.…
Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024)
The court then gave the parties some advice:
[T]he parties should have an opportunity to reach an accord regarding their privilege logs. It may behoove them to do so because courts have great discretion to resolve discovery disputes. [emphasis added; citations and quotations omitted].
Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024)
In its final sentences, the court wrote: “In short, it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling. The parties will report the results of their efforts at a status hearing in two weeks….”
While the result – telling the parties that cooperation is mandatory and directing them to try to reach an agreement – makes a lot of sense, I do not agree with the court’s skepticism about categorical and other innovative privilege logs. See Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun(Mar. 25, 2021); Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024).
Here, it seems that plaintiff’s log that was inconsistent with its demand, and defendant’s shifting target, were factors in the calculus. Defendant’s conclusory boilerplate did not help it. Further, while the factual predicate for the court’s impression that there was a lack of good faith in court-ordered negotiations was not expressly stated, a failure to cooperate in good faith is almost always a major consideration.
