In McSwain v. HOMAG Machinery N. America, Inc., the court distinguished state substantive privilege law from the federal procedural rules governing the sufficiency of a privilege log.
In Medal v. Amazon, a federal court refused to enter a Rule 502(d) clawback order without party agreement and declined to require production of responsive documents not captured by search terms. Michael Berman respectfully disagrees on both counts, drawing on legislative history, advisory committee notes, and circuit authority.
In Wilson Aerospace v. Boeing, the court found Rule 502(b) waiver when the producing party failed to demonstrate reasonable pre-production privilege screening and compliance with its clawback order.
A Kansas court appointed a Special Master in EEOC v. Genesh, Inc. to resolve electronic discovery disputes, signaling a firm stance on procedural fairness.
The court in Faulkenberry v. Austin ruled that disclosing attorney-client privileged information during therapy and using privileged documents to prepare for Rule 30(b)(6) depositions can result in a waiver of privileges.
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).
Michael Berman analyses Bautech USA, Inc. v. Resolve Equip., Inc., 2024 WL 1929486 (S.D. Fla. May 2, 2024).where privilege was waived due to timeliness issues in submitting privilege logs. Where no logs were required, privilege was not waived.
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.
[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.] In ‘Rust’ Armorer’s Phone Snafu Shows Risks Of Texting Clients – Law360 (Feb. 13, 2024), Phillip Bantz wrote: “A legal dust-up over compromised text messages between a movie prop weapons…
The Supreme Court of Maryland has amended Maryland Attorneys’ Rule of Professional Conduct 19-304.4(c) (Rule 4.4(c)). Maryland’s new rule prohibits an attorney from seeking privileged information from a third person. If such information is disclosed to the attorney, the amended rule imposes a duty to terminate the conversation and provide notice to the person entitled to enforce the privilege. There is no analog in ABA Model Rule of Professional Conduct. 4.4.
In Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 NY Slip Op. 33448(U) (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.)., the court wrote that: “This motion presents novel questions about litigation counsel’s obligations when she or he comes into possession, through non-party discovery, of a DropBox link that provides live access to an opposing party’s cloud-based corporate file directory.” The opinion stated: “The parties have not cited (and the Court has not found) any precedent or guidance that directly addresses this vexing and concerning fact pattern.” It added that it had not found “or been directed to guidance covering the precise fact pattern presented in this case – counsel using a hyperlink that permits unauthorized review of a litigation adversary’s live electronically-stored corporate files.”
Explore recent e-discovery updates: expedited forensic imaging for devices, privilege waiver consequences, spoliation sanctions, and manual document review rulings by U.S. courts.