Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced

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

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court enforced an ESI Protocol that called for a “metadata-only” privilege log, even though parts of the metadata were redacted by the producing party.  The holding ultimately hinged on the text of the ESI Protocol and an unforced error by defendants in failing to ask for information that the ESI Protocol permitted it to get.

Defendants Hillrom challenged plaintiff Linet’s privilege log, alleging failure to provide sufficient information to assess the basis for certain privilege assertions.  The court wrote that:  “Hillrom provides one example in its brief, pointing to an entry where Linet gave no privilege description but disclosed the email subject line (identifying the communication as about a large hospital system), as well as the date and senders and recipients of the email, which included outside counsel.”

Plaintiff Linet replied, in my words, “wait a minute, that’s what we agreed to do.” Hillrom acknowledged “the parties agreed to metadata-only privilege logs,” but disputed that Linet complied with the ESI Protocol.

The ESI Protocol had several important clauses:

• “The agreed ESI Protocol Order allows the parties to provide a metadata-only privilege log with objective fields such as the date, sender and recipient, email subject or file name, and custodian, and without any privilege description.”
• “The ESI Protocol only requires a privilege description if the basis for privilege is not apparent from the objective metadata.”
• “Linet also points out the ESI Protocol provides a process by which Hillrom can request a ‘full Rule 26 privilege log entry’ if it has a good faith belief to assert the communication is not privileged….”

The Linet Americas court wrote:

Under the terms of the agreed ESI Protocol, Linet’s log entries identifying communications between Linet employees and outside counsel with a subject line or file name are permissible and sufficient “metadata only” entries.… Thus, the Court understands the heart of this dispute to be about whether Linet’s privilege log descriptions are adequate in instances where the subject line or file name is redacted. Hillrom’s objects that in those circumstances, Linet’s descriptions of a document or communication as regarding an “antitrust case assessment” or “updated antitrust assessment” are too vague to assess the basis for privilege…. Hillrom says the ESI Protocol requires Linet to provide a separate “‘substitute [ ] description’ of the information the [redacted] fields would normally provide, such as whether it pertains to “Hillrom’s beds, nurse call systems, contracts, or something else entirely.” … Linet, in turn, says the ESI Protocol permits redactions of subject lines and file names and only requires a description of the document, not a separate description of the redacted field…. Linet says it has complied with this requirement by providing information describing the withheld communication or document in the Attorney/Description of Privileged Material field in the log….

 The Court agrees with Linet that the ESI Protocol does not require a separate description of the redacted subject lines or file names. The ESI Protocol provides that “if the basis for the privilege asserted is not apparent from the objective metadata” the party must also include an “Attorney/Description of Privileged Material” field…. In the next paragraph, the ESI Protocol states that if a party redacts the email subject or file name of a document because “the contents of these fields may reveal privileged information” the party “may substitute a description of the document.” … The Court agrees with Linet that both paragraphs refer to the same description of the privileged document and that the ESI Protocol does not require a separate description of the subject matter of a redacted email subject or file name.

Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024).

In it rejecting the defendants’ challenge, the court wrote:

The question is whether Linet’s document descriptions are adequate under the ESI Protocol. Linet generally describes the withheld emails between Linet and outside counsel as about requests for legal advice related to an antitrust case assessment…. Hillrom says Linet’s descriptions fail to provide “a document description that complies with Rule 26(b)(5)” and generally cites law regarding Rule 26(b)(5) requirements for a privilege log…. Hillrom’s argument, however, ignores the parties’ agreed ESI Protocol, which expressly contemplates a metadata-only log in lieu of a log under Rule 26(b)(5). [emphasis added].

Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024).

The court added a procedural holding to that textual analysis:

Importantly, the ESI Protocol also provides an agreed process for the parties to address good faith requests for a log entry “in compliance with Fed. R. Civ. P. 26(b)(5)” and to dispute privilege claims…. Because Hillrom did not comply with this process for challenging the adequacy of Linet’s privilege log entries, … this dispute is not ripe for resolution. [emphasis added].

Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024).

Whether that is viewed as a failure to exhaust remedies, failure of a condition precedent, or a failure to engage in pre-filing good faith discussions to attempt to resolve the dispute, it was apparently fatal.

For related information, please see:

• The ESI Protocol: Your Word is Your Bond… Or, Is It? (Jan. 11, 2024);
• Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024);
• “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024);
• When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024).