Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery

Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery by Michael Berman, E-Discovery LLC.
Image: Holley Robinson, EDRM with AI.

[EDRM Editor’s Note: This article was first published here on September 6, 2025. The opinions and positions are those of Michael Berman.]

In Lively v. The Skyline Agency LLC, 2025 WL 2532796 (S.D.N.Y. Sep. 3, 2025), the court wrote that Ms. Lively subpoenaed a Signal Chat in connection with Lively v. Wayfarer Studios LLC, No. 24-cv-10049 (S.D.N.Y. filed Dec. 31, 2024) (the “Lively Action”). Id. at *1.

Skyline and Ms. Kalantari withheld certain information.  Ms. Lively moved to compel under Fed.R.Civ.P. 45 in the Northern District of Texas.  It was transferred by consent to the Southern District of New York, where the Lively Action is pending.1

Much of the Skyline case turns on the assertion of privilege.  However, before reaching that issue (which is not discussed in this blog), the court addressed relevance and the scope of discovery.

As an initial matter, the Skyline Parties have effectively conceded that the materials are relevant by including them on their privilege log.

Lively v. The Skyline Agency LLC, 2025 WL 2532796, at *3 (S.D.N.Y. Sep. 3, 2025)

The Skyline court held that, by listing the materials on a privilege log, Skyline was admitting relevance.  It wrote:

As an initial matter, the Skyline Parties have effectively conceded that the materials are relevant by including them on their privilege log. The purpose of a Rule 26(b)(5)(A)(ii) privilege log is to flag for an opposing party “otherwise discoverable” materials that have been withheld due to an assertion of privilege. Fed. R. Civ. P. 26(b)(5)(A)(ii). Materials must be relevant in order to be discoverable. Fed. R. Civ. P. 26(b)(1). Thus, by indicating that the withheld materials would have been discoverable but for their assertion of privilege, the Skyline Parties have acknowledged the materials’ relevance. See Oxygenator Water Techs., Inc. v. Tennant Co., 2023 WL 11959150, at *4 (D. Minn. July 25, 2023) (“[W]hen a party produces a privilege log, information on that log is presumed to be ‘otherwise discoverable,’ i.e., relevant.” (quoting Williams v. Corelogic Rental Prop. Sols, 2016 WL 6277675, at *3 (D. Md. Oct. 26, 2016))). Moreover, the Skyline Parties’ acknowledgment of relevance was an appropriate one given the nature of Lively’s allegations…. The Court therefore turns to the Skyline Parties’ assertion of privilege.

Id. at *3.

For prior blogs on the Lively lawsuit, please see “Discovery on Discovery” Denied in “It Ends With Us” Lawsuit – E-Discovery LLC (Sep. 5, 2025);  Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us”– E-Discovery LLC (Aug. 30, 2025); “It Ends With Us” – E-Discovery LLC (Apr. 8, 2025); Court Grants Motion to Strike Deposition Transcript Using Its “Inherent Power” – E-Discovery LLC (Aug. 11, 2025); Initial Disclosures Cannot Await Expert Opinions – E-Discovery LLC (Jul. 20, 2025); Party’s Motion to Quash Subpoena Denied for Lack of Standing – E-Discovery LLC (Jul. 2, 2025); and, Crime-Fraud Exception to Privilege Not Shown – E-Discovery LLC (Jun. 8, 2025).

Read the original article here.

Notes

  1. Skyline was transferred by consent.  Other contested transfer orders have been entered.  Lively v. Sourced Intelligence, Inc., 2025 WL 2549213 (C.D. Cal. Sep. 4, 2025). ↩︎

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.

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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