Privilege Log Entry That Document is “A-C Privileged and/or Work Product” Held Insufficient

E-Discovery LLC - Privilege Log Entry That Document is “A-C Privileged and/or Work Product” Held Insufficient By Michael Berman
Image: Holley Robinson, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

An “and/or” privilege log entry was deemed insufficient in Deltondo v. The School Dist. Of Pittsburgh, 2024 WL 3861036 (W.D. Pa. Aug. 19, 2024).

The Deltondo court began its memorandum order by stating: “Regrettably, this action is notable for the nature and extent of the parties’ discovery disputes.”  After reciting prior disputes that had been resolved, the court wrote: “Inexplicably, the Court was not advised of ongoing discovery issues until several weeks before the close of fact discovery.”

In pertinent part, the court addressed a privilege log entry stating that documents were withheld as protected by the attorney-client privilege “and/or” the work product doctrine.  The Deltondo court wrote:

Defendants move to compel the production of an amended privilege log due to certain deficiencies. Specifically, they note that one of the entries cites the basis of the privilege as “attorney-client privilege and/or work product,” a designation that the Court previously ruled was improper. Plaintiff counters that a document may fall within both categories, and in fact, her privilege log does contain multiple entries the state the basis of the privilege as both “attorney-client privilege and work product.” …  However, as previously ruled in connection with Defendants’ privilege log, the entry improperly states “and/or.” Thus, it must be amended to state the nature of the privilege or privileges and may not include “and/or.”

Deltondo v. The School Dist. Of Pittsburgh, 2024 WL 3861036, at *1 (W.D. Pa. Aug. 19, 2024) (emphasis added).

The court entered an order that plaintiff shall “[a]mend her privilege log by revising any entry that uses ‘and/or’ as the basis of a privilege and provides the basis or bases for the privilege asserted….”

Author

  • Miichael Berman's headshot

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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