[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
A challenge to a redacted metadata privilege log was partly successful. Jeffries Funding LLC v. Dasagroup Holdings Corp., 2025 WL 2611922 (N.D. Ca. Sep. 10, 2025). For a description of “metadata privilege logs” see How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform – E-Discovery LLC (Aug. 7, 2024).
FACTS AND NINTH CIRCUIT STANDARD FOR PRIVILEGE LOGS
“Dasagroup’s privilege log at issue includes, for each row corresponding to a withheld email document, the following fields of information: (a) beginning and ending Bates numbers, (b) Custodian, (c) Sent Date and Sent Time, (d) Email From, (e) Email To, (f) Email CC, (g) Email BCC, (h) Email Subject, (i) File Name, (j) File Author, (k) Privilege Claimed, and (l) Privilege Description/General Subject Matter.” Id. at *2.
“The Ninth Circuit has held that a party meets its burden of demonstrating the applicability of the attorney-client privilege by submitting a log that identifies (a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.” Id. at *1.
REDACTION OF PRIVILEGED METADATA WAS PERMITTED
However, Dasagroup redacted some of the “Email Subject” and “File Name” fields. Jeffries asserted that the information provided was insufficient as to the subject matter. Dasagroup responded that the redactions applied to privileged email subjects and file names, asserting that the redactions were therefore proper. Dasagroup prevailed on this issue, with the court writing:
To the extent Jefferies seeks an order requiring the privilege log entries to be unredacted or amended to reveal these redacted Email Subject lines and File Names, that remedy is not well-supported by Ninth Circuit law. As discussed above, the Ninth Circuit does not require a privilege log to contain a verbatim recitation of the email subject line of a withheld email…. Under Ninth Circuit standards, what is required for a privilege log in this respect is “a brief statement describing the subject of the content” of the document (i.e., the nature of the document).…To the extent an email subject line or a file name reasonably constitutes an attorney-client communication in and of itself, redacting that information from a privilege log does not run afoul of the Ninth Circuit’s standards or Rule 26(b)(5).
Id. at *2 (emphasis added).
See How Much Detail is Enough in a Privilege Log? – E-Discovery LLC (Apr. 9, 2024).
A GENERIC DESCRIPTION OF PRIVILEGED SUBJECT MATTER WAS INSUFFICIENT
Jeffries was more successful on its second challenge: “Jefferies argues that the final column or field for these privilege log entries, titled ‘Privilege Description/General Subject Matter,’ is equally deficient because for these redacted entries Dasagroup has not provided any description of the contents or even general nature of the withheld documents.” Id. at *2.
Jeffries prevailed on this issue because “the ‘Privilege Description/General Subject Matter’ for these documents with redacted email subject lines/file names consist of nothing more than recitations of the assertion that each document is a privileged attorney-client communication, with nothing more.” Id.
Jeffries prevailed on this issue because “the ‘Privilege Description/General Subject Matter’ for these documents with redacted email subject lines/file names consist of nothing more than recitations of the assertion that each document is a privileged attorney-client communication, with nothing more.”
Id.
The court held that it was insufficient to redact the Email Subject, File Name, and state only: “Privileged and confidential communication between attorney and client set for the purpose of obtaining legal advice or in furtherance of providing such advice.” Id. This description failed to disclose the “nature of the document” and was not a “brief statement of the subject of the content” of the document, as required. Id. at *3. The court wrote:
As to these redacted entries, Dasagroup is ORDERED to serve an amended privilege log which provides, in the “General Subject Matter” field, sufficient textual description of the nature of the document (i.e., a brief statement of the subject of the content) to justify the assertion of privilege, both as to the underlying document and (to the extent different) as to the redacted “Email Subject” and redacted “File Name” to the extent Dasagroup maintains that those constitute attorney-client communications in and of themselves.
Id.
ADDITIONAL DETAIL FOR “CHILD” ATTACHMENTS WAS ORDERED
Jeffries also successfully challenged the privilege log entries for attachments to emails. The attachments did not provide information about the author, recipient, or Email Subject. Id.
Jeffries also successfully challenged the privilege log entries for attachments to emails.
Id.
Dasagroup explained that they were “children” to the “parent” email in the preceding row of the privilege log. The court wrote that the “General Subject Matter” field of the log was “unhelpful” because it was nothing more than a generic assertion of privilege without describing the document. The court explained:
It may be that these attachments are themselves privileged communications but without further information (such as privilege log entries for these documents setting forth the author, recipient, date, and nature of the document) it is difficult to ascertain. For these reasons, the Court finds that Dasagroup’s privilege log entries for these documents are insufficient to make a determination whether these separately listed documents are privileged. As to these privilege log entries, Dasagroup is ORDERED to serve an amended privilege log which provides information on the author(s), recipient(s), date, and, in the “General Subject Matter” field, sufficient textual description of the nature of the document (i.e., a brief statement of the subject of the content) to justify the assertion of privilege as to each withheld document. The description of the document in the “General Subject Matter” field shall also indicate whether each withheld document is, as suspected, an attachment to an email (and identify the email such as by indicating that the document is attached to the email described in the row above, or by Bates number or otherwise).
Id. at *3.
I respectfully disagree with that approach to the parent-child issue. I suggest that information about what a client sent to their attorney is privileged, even though the underlying document itself is not privileged. The underlying document should be produced separately if it is not privileged in itself and is responsive. See The “Part and Parcel” Principle – E-Discovery LLC (Jan. 23, 2025)(“in Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court cited Upjohn Co. v. United States, 449 U.S. 383 (1981), and wrote that ‘[a] fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his [or her] knowledge merely because he [or she] incorporated a statement of such fact into his [or her] communication to his [or her] attorney.’”); “Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But…. – E-Discovery LLC (Aug. 8, 2024).
COOPERATION IS A BEST PRACTICE FOR PRIVILEGE LOGS
There is no indication that the parties in Jeffries Funding LLC v. Dasagroup Holdings Corp., negotiated the contours of a privilege log prior to production of the log. If they had done so, some issues might have been avoided. See Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced – E-Discovery LLC (Jul. 22, 2024); What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? – E-Discovery LLC (Apr. 8, 2024).
Cooperation is a best practice. Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” – E-Discovery LLC (Mar. 4, 2024).
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
