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

In Cassels Brock & Blackwell LLP v. Veroblue Farms USA, Inc., 2026 WL 66893 (N.D. Iowa Jan. 8, 2026), the court addressed the theory supporting the principle that an inadequate privilege log may defeat a claim of privilege.  The case was before a U.S. Magistrate Judge on review of the decisions of a Bankruptcy Court.

The Sedona Conference wrote that: “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.”  “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016).

The Cassels Brock & Blackwell court set the scene in the first paragraph:

Appellant Cassels Brock & Blackwell LLP, a law firm, challenges a bankruptcy court order requiring it to produce nearly 7,000 documents to which it raised a blanket claim of attorney-client privilege. Cassels argues that only a client can waive the attorney-client privilege, not a lawyer, so its actions (such as producing a deficient privilege log, despite numerous opportunities for correction) cannot be considered in finding the attorney-client privilege inapplicable. I find that Cassels conflates the waiver doctrine with its burden of proving privilege and recommend affirming the bankruptcy court’s decision.

Id. at *1 (emphasis added). 

Cassels produced nearly 7,000 documents–contained in 39 four-inch binders – for in camera review. Id. at *2.

The Bankruptcy Court described a generic “blanket assertion of privilege.” In an exceedingly complex factual scenario, “[t]he bankruptcy court recognized that Cassels bore the burden of proving the files were attorney-client privileged. The court ultimately concluded Cassels had failed to do so. The court noted Cassels’s privilege log (only produced after an order to compel and being held in contempt) ‘contain[ed] no explanatory information about the contents of the documents or any indication that the communications were intended to be confidential in the first place.’”  Id. at *2.

The Cassels Brock & Blackwell court held that the privilege issue raised by an inadequate privilege log should be analyzed under a burden of proof analysis, not under the doctrine of waiver. It wrote:

Some courts, like the underlying bankruptcy court decision here, speak in terms of “waiving” the attorney-client privilege by filing an inadequate privilege log. Other courts, however, use language suggesting that by providing an inadequate privilege log, a party “fail[s] to meet its burden to establish … attorney-client privilege.” Wright and Miller’s Federal Practice and Procedure has recognized that “much of the discussion of waiver issues” are “ ‘confused,’ and … properly understood, ‘waiver’ should not include many problems now handled under that title.” The purpose of the attorney-client privilege is “to enable a client to have subjective freedom of mind in committing his affairs to the knowledge of an attorney.” The protection of the attorney-client privilege “ ‘ceases, or is often said to be “waived,” when otherwise privileged communications are disclosed to a third party,’ because ‘such disclosure “destroys the confidentiality upon which the privilege is premised.’ ””

Id. at *5 (emphasis added).

It continued:

The requirement to produce a privilege log is better understood as part of the burden of proving privilege, rather than under the waiver doctrine. Producing a privilege log does not destroy confidentiality such that an intent to “give up” the attorney-client privilege may be implied (as with the implied waiver scenarios discussed above). Instead, a privilege log allows the opposing party and the court to ensure that the communications claimed as privileged truly are—that they are with an attorney and related to legal advice (as opposed to business advice). Numerous cases state that the party claiming privilege must prove these elements of the attorney-client privilege—not just the client or the holder of the privilege. In addition, Rule 26(b)(5) requires a privilege log from the “party … claiming … privilege[ ].”

Here, Cassels was the party claiming privilege. Therefore, it had the burden to prove the elements of attorney-client privilege and to produce a privilege log.

Id. at *6 (emphasis added).

The court held that, on the facts, Cassels did not carry its burden. It produced an inadequate log only after violating an order to do so.  It refused “to narrow its blanket claim” and sought in camera review of 7,000 documents, many of which were deemed not privileged, among other failings. The court wrote:

Although the bankruptcy court used the term “waiver,” read in context, it is clear the court found Cassels had failed to establish that “each of the documents—or any document individually—contained confidential attorney-client communications made for the purpose of receiving legal advice.” … The bankruptcy court’s ruling rested on Cassels’s failure to prove the existence of attorney-client privilege, rather than on implied waiver.

Id.

The court rejected Cassels’ argument that only the client can waive privilege: “None of Cassels cited cases stand for the proposition that a law firm need not produce a privilege log nor prove the elements of attorney-client privilege.”  Id. at *8.

The Magistrate Judge concluded: “I recommend rejecting Cassels’s argument that seeks to allow a law firm to raise a blanket claim of attorney-client privilege without having to produce a privilege log or otherwise establish that the elements of the attorney-client privilege have been satisfied. The bankruptcy court gave Cassels numerous opportunities to correct its privilege-log deficiencies, and Cassels instead clung to its position that it could not be ordered to produce the documents because it was the law firm and not the client. I recommend affirming the bankruptcy court’s decision.”  Id.

For other views, please see:

• Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 20, 2024);
• Doug Austin, Privilege Waived on WhatsApp Audio Files Due to Lack of Privilege Log (Feb. 27, 2024);
• Court Issues Stern Warning About Privilege Logs (Aug. 11, 2025);
• Privilege Log Deemed Partially Inadequate (Jun. 19, 2025);
• No Privilege Log is Necessary in Limited Circumstances When Discovery Requests Are Overbroad (Apr. 5, 2025);
• Privilege Logs, Null Sets, Search Strings, and Number of Custodians in One Decision (Jan. 27, 2025);
• Fiskars II:  Vague Challenge to Privilege Log Entries Deemed Defective (Aug. 25,2024);
• Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024).

For a novel approach to reduce the cost of privilege logging, please see Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024).  That blog also lists waiver as the applicable analytical framework:

In Privilege Waived on WhatsApp Audio Files Due to Lack of Privilege Log (ediscoverytoday.com) (Feb. 27, 2024), Doug Austin described Coker v. Goldberg & Assocs. PC, No. 21-CV-1803 (JLR) (BCM) (S.D.N.Y. Jan. 24, 2024), where the court found privilege waived by the failure to provide a log.  Accord, Kelly Twigger, Can Failing to Produce a Privilege Log Lead to Waiver of Privilege and Sanctions? | Association of Certified E-Discovery Specialists (ACEDS) – JDSupra (Feb. 15, 2024)(“The Court said you haven’t produced a privilege log, therefore, you have waived the privilege as it exists in these communications.”); J. Leonard & T. O’Connell, Chancery Finds Wholly Generic Objections to Discovery Requests Result in Waiver and Fee-Shifting | Morris James LLP – JDSupra (Feb. 23, 2024).  In Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359 (D. Md. 2008), general “to the extent” objections were called “worthless” and could be viewed as a waiver.

For a discussion of the substantive import of privilege logs see A Privilege Log Can Be Admissible Evidence (Jan. 20, 2026).

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