[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
“Privilege logs can be admissible evidence.” Carefirst of Maryland, v. Johnson & Johnson, 2026 WL 114415, at *3 (E.D. Va. Jan. 14, 2026)(citations omitted).
I have written about related topics in:
- Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025);
- Privilege Log Helps Defeat Summary Judgment on One Count (Jun. 24, 2025);
- Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sep. 6, 2025).
The Carefirst court quoted precedent stating:
For example, an entry on a privilege log could be … an admission that a privileged communication took place on a certain day. Sometimes the existence of an attorney-client communication, in and of itself, can have a bearing on the issues at trial.
Carefirst of Maryland, v. Johnson & Johnson, 2026 WL 114415 (E.D. Va. Jan. 14, 2026).
However, the Carefirst court cautioned that a negative inference should not be drawn from a proper invocation of privilege. Id. Further, descriptions in a privilege log cannot be used to impeach a witness who did not write those descriptions. Id.
The court wrote: “As it has made clear throughout its briefing, CareFirst seeks to rely on J&J’s privilege log and document metadata as evidence in support of its theory that J&J knew about the four Momenta manufacturing patents at the time it acquired Momenta and that J&J intended to acquire the manufacturing patents for an anticompetitive purpose.” Id. at *3.
J&J moved in limine to preclude Carefirst “referencing misleading privilege log entries and making arguments regarding facts not in evidence,” asserting that it “would require the jury to make an impermissible negative inference about the privileged content.” Id.
Carefirst is a complex monopolization case, and the court engaged in a detailed analysis of metadata fields that may not have any application to other factual situations. However, the court concluded:
For clarity, the Court finds the following uses of J&J’s privilege log may be admissible subject to CareFirst laying a proper foundation as to the meaning of the metadata fields: (1) use of the “Created/Sent Date” metadata field for the purpose of showing the fact of a document’s creation or download, if presented in conjunction with the FamilyID field to provide the context of whether the document was part of a family; and (2) use of the “Created/Sent Date” metadata field for emails as well as the custodian, sender, and recipient metadata fields to show the fact of communication. CareFirst’s characterization of deposition testimony based on the facts in evidence and absent an impermissible negative inference about the content of privileged material is also admissible.
The Court finds the following uses of the privilege log and/or metadata are inadmissible: (1) use of any privilege log entries to demonstrate that particular entries are related based on the “Created/Sent Date” of the entries and/or the subject lines of emails; (2) invocations of privilege during deposition.
Id. at *6-7.
The Carefirst court did not “rule out” the possibility that the privilege log could be used for impeachment. Id. at n. 12.
Although authorities are not uniform, privilege logs have been used as evidence that the duty to preserve was triggered by assertions of work product:
- Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024);
- Designation of “Work Product” Supports Inference of Intentional Spoliation(Jun. 27, 2024);
- When Did the Duty to Preserve Arise? – At Time of Plaintiff’s Pre-Suit Investigation (May 11, 2025).
On a related issue, see A Request to File a Privilege Log Under Seal Was Denied (Aug. 27, 2024).
Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.
