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

“The instant motion represents the latest skirmish in a long-running conflict between the Parties regarding the scope, nature, and volume of Plaintiff’s discovery. The Court will not recite each episode of unpleasantness herein. Now before the Court is a motion for a protective order, in which Defendant seeks the Court’s intervention in reining in what it believes are Plaintiff’s abusive discovery practices. Plaintiff opposes the motion.”  Thompson v. Seattle Public Schools, 2026 WL 879160 (W.D. Wash. Mar. 31, 2026).

The Thompson court noted that it has “broad discretion” in controlling discovery.  It addressed a number of issues; however, this blog focuses on the categorical privilege log issues.  The court held that categorical privilege logs are not disfavored.  They are permitted under Rule 26 and a litigant need not seek a court order to use one.

Defendant sought a court order permitting a categorical privilege log.  Plaintiff asserted that categorical logs are contrary to Ninth Circuit precedent.  The Thompson court held that Ms. Thompson misread the precedent.

The court also wrote that categorical logs are not “disfavored.” Id. at *4. Quoting the privilege log rule, Fed.R.Civ.P. 26(b)(5)(A)(ii), the court added: “Courts have found that the Rule does not mandate a document-by-document approach.”  It also looked to the Advisory Committee Notes to Rule 26 which “indicate that a document-by-document privilege log is not required in certain circumstances.” [emphasis in original].

The Thompson court recited the guiding principle: “Deviation from the ‘traditional format’ is appropriate where a document-by-document privilege log would be unduly burdensome and inappropriate.” Id. at *5 (cleaned up).

The court then applied that principle to the facts presented:

Here, Defendant describes Plaintiff’s discovery requests “outrageously broad.” … Plaintiff seeks information from Defendant’s counsel’s law firm that encompasses “all client matters and invoices and financial banking and payment information for the last four years for [approximately 19] attorneys.” … Combing through these case files “would take an unmeasurable amount of time.”... For her part, Plaintiff does not present an argument beyond her categorical rejection of categorical privilege logs…. She does not assert dispute Defendant’s characterization of her requests as “outrageously broad.” Moreover, the Court understands Defendant’s position to be that what is burdensome is the sorting and sifting through documents to determine privilege, and not necessarily the production itself. Plaintiff’s argument that she “is not seeking unrelated client confidences or privileged mental impressions” … does not lessen Defendant’s burden in determining, on a document-by-document basis, what is or is not privileged or protected. Declaring that one seeks only the needle does not make the haystack any smaller.

Therefore, this request is DENIED. Rule 26 provides Defendant with the relief it requests, and the Court’s permission to adhere to the Rule is unnecessary. In accordance with Rule 26, Defendant must produce a privilege log that contains sufficient information to “enable [Plaintiff] to assess…claim[s]” of privilege. Fed. R. Civ. P. 26(b)(5)(A)(ii); see In re Imperial Corp., 174 F.R.D. at 479 (enumerating information to be provided in categorical privilege log).

For more information on categorical privilege logs, please see:

• Example of a Categorical Privilege Log (Sep. 23, 2024);
• When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024);
• Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021);
• Categorical Privilege Log Presented Interpretive Issues (Nov. 17, 2021);
• Privilege Log Decision in Blake Lively v. Wayfarer Studios/Justin Baldoni, et al. (Nov. 25, 2023)

For some alternatives, please see:

• Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024);
• Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024);
• How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024).

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