Tag privilege logs

E-Discovery LLC - The Standard for In Camera Review of Assertedly Privileged Documents By Michael Berman

The Standard for In Camera Review of Assertedly Privileged Documents

In Willoughby v. Govt’. Employees Insurance Co., 2024 WL 3183860 (M.D. Fl. June 26, 2024), the court explained the standard governing requests for in camera review.  

While there were several motions and cross-motions, on the in camera review issue, the court wrote that: “Plaintiff attached almost 200 pages of Defendant’s privilege logs, highlighted to reflect the hundreds of entries that Plaintiff wished the Court to review.”

The court held that plaintiff failed to demonstrate a sufficient basis to invoke that process.  Plaintiff’s argument was that “it appears that Defendant is asserting privilege over documents in which counsel gave business advice rather than legal advice.”

Read MoreThe Standard for In Camera Review of Assertedly Privileged Documents
When is Failure to Provide a Timely Privilege Log Excusable? by Michael Berman

When is Failure to Provide a Timely Privilege Log Excusable?

In Melton, 2024 WL 3015749, at *5, the court recognized the general rule: “[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived….  Furthermore, even when privilege objections are timely asserted, the failure to produce a proper privilege log generally constitutes waiver of the privilege objections.” [emphasis added].

The Melton court then listed the countervailing factors, writing:

On the other hand, Federal Rule 33(b)(4) provides that “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” (emphasis added). “In deciding whether good cause exists, courts consider (1) the length of the delay in failing to object; (2) the reason for the delay; (3) whether there was any bad faith or dilatory action of the party that failed to object; (4) whether the party seeking discovery was prejudiced by the failure; (5) whether the document production request was properly framed and not excessively burdensome; and (6) whether waiver would impose an excessively harsh result on the defaulting party.”
Id. (citation omitted).

Read MoreWhen is Failure to Provide a Timely Privilege Log Excusable?
Documents Withheld Under Deliberative Privilege – No Privilege Log Needed?

Documents Withheld Under Deliberative Privilege – No Privilege Log Needed?

Mike Berman analyzes Blue Mountains Biodiversity Project v. Jeffries, 99 F.4th 438 (9th Cir. 2024) to determine where the obligation to disclose for transparency meets deliberative privilege with impacts on whether a privilege log must be provided and how detailed it must be.

Read MoreDocuments Withheld Under Deliberative Privilege – No Privilege Log Needed?
What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith?

What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith?

In Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024), the court wrote that it “would prefer this case not go to the dark place where attorneys on one side demand that the attorneys on the other side provide declarations in which they swear they are telling the truth about complying with their discovery obligations.”

The pertinent issue involved categorical privilege logging.  Defendant did not want to log privileged communications after a date certain, such as after plaintiff’s demand.  However, the court wrote that defendant’s date certain was a shifting target.

The District Judge had ordered the parties to meet and confer concerning, among other things, ESI and privilege logs.  In the court’s words, “things went off the rails….”  A few months later, plaintiff asserted that defendant refused to produce a privilege log and the case was referred to a U.S. Magistrate Judge who wrote: “As is often the case with discovery disputes, judging by their submissions on this dispute, the attorneys appear to be involved in two completely different cases.”

Read MoreWhat Happens When Parties Fail to Negotiate a Privilege Log in Good Faith?
Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” by Michal Berman

Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”

Michael Berman reviews The Sedona Conference, Commentary on Privilege Logs (Feb. 2024, Public Comment Version)(citing Rule 29) alongside the EDRM Privilege Log Protocol: Version 2.0(2023) and advocates a trust but verify methodology. 

Read MorePrivilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”