A Nevada federal judge recently refused to “second guess” a magistrate judge’s decision to allow a categorical assertion of privilege during electronic discovery.

Rule 26 of the Federal Rules of Civil Procedure requires a party withholding documents on the basis of privilege to describe withheld documents in a manner that enables other parties to assess the claim of privilege.  However, in Oracle USA, Inc. et al. v. Rimini Street, Inc. et al., Judge Larry R. Hicks said that requirement does not mean every party asserting privilege must produce an itemized privilege log in every situation.[1]

Itemized privilege logs are ones where individual documents are logged on an individual basis. By contrast, categorical privilege logs are ones where common documents are grouped into categories.

Judge Hicks said itemized privilege logs are not required by Rule 26 and categorical logs are envisioned under the Advisory Notes. Those Notes say itemized privilege logs “may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.” Judge Hicks also referenced language from another federal judge—this one sitting in California—who stated “nowhere in Fed. R. Civ. Pro. 26(b)(5) is it mandated that a document-by-document privilege log is required…”[2]

Categorical privilege logs are allowed by several federal courts

Judges in almost all of the federal circuits have endorsed categorical privilege logs under appropriate circumstances. Some courts have even gone so far as to incorporate categorical privilege logs into their local rules. For example, in the Southern District of New York, local civil rule 26.2(c) provides: “when asserting privilege on the same basis with respect to multiple documents, it is presumptively proper to provide the information required by this rule by group or category.”

However, a showing of undue burden is often necessary. Generally, cases involving a relatively small number of documents and straightforward issues will not pass muster. For example, in Tyco Healthcare Grp. LP v. Mut. Pharm. Co., a New Jersey federal court rejected the defendant’s categorical privilege log because the defendant failed to show how individually logging 3,000 documents would be unduly burdensome.[3]

By contrast, cases involving hundreds of thousands of documents, complex issues and/or a robust litigation history are particularly ripe for categorical assertions of privilege. For example, one California court permitted categorical privilege where approximately 50 parties, 20 law firms and “hundreds of thousands, if not millions, of documents” were involved.[4] Courts have also allowed a privilege log to employ a categorical approach when the discovery request on its face seeks “‘wholesale production of documents’ that are ‘ordinarily covered by’ work-product protection and/or the attorney-client privilege or the responsive materials are extremely voluminous."[5]

On the other hand, courts will reject vague summaries and rote assertions of privilege—even in categorical logs. A Massachusetts federal court rejected a categorical privilege log as lacking sufficient details where the log identified the categories of withheld documents in broad strokes such as “communications” and failed to explain how the privilege would apply to the involved parties.[6] Last year, a New York court similarly emphasized that categorical privilege logs are adequate only if they provide information about the nature of the withheld documents sufficient to enable the receiving party to make an intelligent determination about the validity of the assertion of the privilege.[7] As one California court explained, “the detail offered cannot be so minimal as to prevent the court from evaluating the privilege claimed.”[8]

Future impact of Oracle decision

The ruling in Oracle represents a continued endorsement of categorical privilege logs by federal judges. However, the ruling is not binding on other courts. And some judges interpret the Advisory Notes to Rule 26 differently than Judge Hicks did in Oracle. This means a categorical assertion of privilege is not guaranteed, and may not be appropriate, in every case all of the time.

[1] No. 2:10-cv-00106-LRH-VCF (D. Nev. Sept. 25, 2020)

[2] In re Imperial Corp. of America, 174 F.R.D. 475, 477 (S.D. Cal. 1997)

[3] No. CIV.A. 07-1299 SRC, 2012 WL 1585335, at *3–4 (D.N.J. May 4, 2012)

[4] See Durkin v. Shields, 74 F.R.D. 475 (S.D. Cal. 1997)

[5] See Benson v. Rosenthal, No. CV 15-782, 2016 WL 1046126, at *10–11 (E.D. La. Mar. 16, 2016) (citing cases)

[6] Neelon v. Krueger, No. 12-cv-11198-IT, 2015 WL 1037992, at *3 (D. Mass. 2015)

[7] See In re Aenergy, S.A., 451 F.Supp. 3d 319 (S.D.N.Y. Apr. 3, 2020)

[8] Franco-Gonzalez v. Holder, No. CV 10-2211-DMGDTBX, 2013 WL 8116823, at *6 (C.D. Cal. May 3, 2013)