Clients can lose privilege protection through explicit waiver (caused by disclosure), implied waiver (usually caused by reliance on undisclosed privileged communication to gain some litigation advantage), or as a sanction for not complying with legal, rule or court requirements when withholding privileged communications during discovery. Some litigants present astounding arguments when hoping to avoid a privilege waiver.
In Brock v. VeroBlue Farms USA, Inc., No. 25-CV-3034-CJW-KEM, 2026 U.S. Dist. LEXIS 2991 (N.D. Iowa Jan. 8. 2026), a Canadian law firm was targeted for discovery in an adversary bankruptcy proceeding. The firm finally produced a privilege log only after being held in contempt — but the log contained “no explanatory information about the contents” of the 7,000 documents for which it claimed blanket privilege protection. Id. at *15 (internal citation omitted). The firm appealed the bankruptcy court’s summary judgment order to produce the documents, and the matter was eventually transferred to a magistrate judge — who addressed the law firm’s “limited argument that it cannot waive attorney-client privilege because it is not the client.” Id. at *16-17.
After noting that “none of [the law firm’s] cited cases” supported its unique argument, the magistrate judge unsurprisingly ordered production of the documents — explaining that “[t]he requirement to produce a privilege log is better understood as part of the burden of proving privilege, rather than under the waiver doctrine.” Id. at *14-16. Because the law generally disfavors parties’ withholding of potentially relevant evidence, wildly imaginative arguments supporting such withholding usually fail.
