[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
An exception to the requirement of a timely privilege log was applied in Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025).
In previous blogs, I addressed decisions holding that Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024); No Privilege Log Is Needed While Scope of Discovery Objections Are Pending (Aug. 3, 2024); When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024).
In Hall, Mr. Hall’s Petition for a Writ of Actual Innocence had been granted and the State decided not to retry him. He then sued the Baltimore Police Department and three individuals involved in his conviction. The individual defendants issued a sweeping subpoena to a non-party, the Mid-Atlantic Innocence Project (“MAIP”).
Both Mr. Hall and MAIP objected to the subpoena on a number of bases. The subpoena sought all of MAIP’s information from 2005 to 2023. For a more detailed discussion of those issues, please see “No Dog in the Fight” Analysis Applies to Scope of Subpoenas in the District of Maryland (Apr. 4, 2025).
This blog focuses on the privilege log issue. 2025 WL 509130, at *11, passim. During a “meet and confer, MAIP refused to provide a privilege log. Id. at *3, 4. Subsequently a partial log was provided. Id. at *4, 6.[1]
On a motion to compel MAIP to comply with the subpoena, one argument by the individual defendants was “that [MAIP’s] failure to provide a privilege log constitutes waiver.” Id. at *10. There is authority supporting that argument. Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024).
The Hall Court did not disagree with the basic waiver principle, writing: “It is true that failure to provide a privilege log may constitute a forfeiture of any claims of privilege.”
It is true that failure to provide a privilege log may constitute a forfeiture of any claims of privilege.
Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025).
However, the Court then described an important exception:
But a privilege log is not always a prerequisite. In limited circumstances, a proponent may present a valid privilege claim without it. The Court, like many others, has recognized that because general allegations of privilege are insufficient, a proponent of the privilege must provide enough information to determine privilege. See Victor Stanley, 250 F.R.D. at 266-67 (collecting cases). The proponent may satisfy this burden without a privilege log where the challenged request is, by its terms, overbroad or necessarily seeking privileged information. The court in Garrity explained that “a document-by-document privilege log is not always necessary when a party has, in good faith, asserted other non-privilege objections to the discoverability of a whole range of materials.”
Id. at *11 (Emphasis added).
The Hall Court followed decisions from other jurisdictions suggesting a practical approach to privilege logging. It wrote that, for many years, “courts exercised caution in requiring a privilege log before considering objections based on categorical overbreadth and disclosure of privileged materials.” Id. at *12. It explained:
This careful approach furthers the Federal Rules’ preference for streamlined discovery and avoidance of unnecessary costs. See generally Fed. R. Civ. P. 1. “Otherwise, any objection to the scope of a discovery demand would be rendered moot because interposing that objection would trigger the very burdensome obligation to prepare a privilege log that the objection would be intended to avoid.”
Id. at *12.
The Hall Court held:
In a case such as this one, where undisputed facts reflect counsel’s relationship to a client and preparation of materials in anticipation of litigation, requiring a privilege log first would impose the burden of “laborious privilege review” that would “far exceed any likely benefit, in terms of relevant documents that for some reason escape privilege or work product protection.” … The Court accepts Plaintiff’s and MAIP’s representations as sufficient to forego their production of a privilege log as to Categories 6-8. An MAIP representative submitted a sworn statement summarizing MAIP’s involvement with Plaintiff, the various individuals involved, various locations of files, and the burden imposed on the small MAIP workforce to review the materials. These representations—and the lack of disputes about their veracity—support the Court’s application of an exception to the privilege log. See Williams, 2020 WL 12968369, at *6 (crediting the parties’ arguments and “sworn statements” of an attorney subject to a non-party subpoena as sufficient “to meet the burden to establish the applicability of the attorney-client privilege and work product protection under the circumstances of this particular case”).
Id. at *12.
In a case such as this one, where undisputed facts reflect counsel’s relationship to a client and preparation of materials in anticipation of litigation, requiring a privilege log first would impose the burden of “laborious privilege review” that would “far exceed any likely benefit…”
Hall v. Baltimore Police Dept., 2025 WL 509130 (D. Md. Feb. 13, 2025).
The Hall Court added that “Plaintiff and MAIP timely asserted privilege in their objections to the subpoena. They conferred with Individual Defendants to resolve and narrow their disputes concerning the subpoena. And, with respect to [other] Categories 9-10, Plaintiff provided a privilege log.”
While the Hall-type of exception appears to be well-settled, it may be risky to rely on it. What would have happened, for example, if the Hall Court had overruled Mr. Hall and MAIP’s objection to the subpoena and if it had found the subpoena to be both proportional and a request for relevant and discoverable information? On those facts, would MAIP’s refusal to timely provide a log have been a waiver of the privilege?
Further, one might argue that MAIP’s affidavit summarizing its involvement and the burden of a conventional privilege log constituted a categorical privilege log. See generally Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024); Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021). However, that approach also would not be risk-free for many reasons.
In these circumstances, it may be prudent for an objecting party to file a motion for extension of time to submit a privilege log in order to avoid the risk that a court may later overrule its other objections to the subpoena. One goal of cooperation in e-discovery is to “front load” disputes so that a court may address them before problems arise.
Notes
[1] The Hall Court wrote: “To the extent there are objections and challenges regarding any entries on those logs, those have not been presented to the Court and are beyond the scope of the pending motions and arguments.”
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
