[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]
Defendants failed to timely assert privilege. Plaintiff claimed waiver. However, because Defendants’ insurance company denied coverage of litigation costs at the time when review of 700,000 documents was to commence, a court held that privilege was not waived by the failure to make a timely objection. Instead, the court ordered production of a privilege log.
“As to attorney-client privilege, although any assertion of the privilege as to a particular document would be untimely under Fed. R. Civ. P. 34(b) at this time, the Court may not find a ‘per se waiver’ due to an untimely assertion of the attorney-client privilege, but instead must consider any possible waiver on a case-by case basis, considering the following factors….” Experian Information Solutions, Inc. v. Stein Saks, PLLC, 2026 WL 3096179 (C.D. Cal. Sep. 28, 2026). Those factors are:
The degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy … or unusually hard.
The Experian Information court found that the first two factors favored waiver.
However, the last two factors did not. Here there were “more than 700,000 documents with search term ‘hits’ that would take a team of 100-150 attorneys two weeks to review….”
Further, the court found that the “particular circumstances of the litigation … make responding … unusually hard….” Defendants’ insurer disclaimed insurance coverage for litigation costs “just as the review for responsiveness of the more than 700,000 documents, including privilege review, was to commence….”
The court held: “On balance, the Court finds on the unique facts here, a waiver of the attorney-client privilege is not warranted based on Defendants’ failure to timely provide a privilege log or otherwise timely assert document-specific privilege objections at this time.”
However, the court ordered Defendants to produce “a compliant, document-specific privilege log that must include all necessary information to support a claim of the attorney-client privilege, including, as appropriate, the drafter/sender of each such ‘document’ (as used herein including electronically stored information), all recipient(s) (including titles and, if an attorney is identified, a statement of whom the attorney represents), a description of the subject matter of the document sufficient to support the claim of privilege but without revealing the information itself that is claimed to be privileged, and the date of the document and/or the date it was shared,” within 14 days.
There are ways to negotiate cost-saving privilege logs. Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024).
If a review platform is being used, it may be possible to create a metadata privilege log. How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024).
While some courts view the issue as one of “waiver,” others describe it as a failure to carry the burden of proving privilege. Inadequate Privilege Log Fails to Meet Burden of Proof; Waiver Doctrine Does Not Apply (Jan. 21, 2026).
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