Privilege Logs in Contract Disputes Act Litigation: An Equal Obligation for Both Parties

Pillsbury Winthrop Shaw Pittman LLP

A recent decision from the Civilian Board of Contract Appeals highlights that the Board will demand sufficiently detailed privilege logs from both agency and contractor litigants.

TAKEAWAYS

  • Contractors and agencies must prepare privilege logs that describe in sufficient detail the nature of each document they withhold.
  • Each party to Contract Disputes Act litigation must explain in their privilege log the rationale for each specific privilege asserted.
  • The Civilian Board will order an offending party to correct its insufficient privilege log rather than more drastic evidentiary sanctions.

In an order released on November 5, 2020, the Civilian Board of Contract Appeals (CBCA or the Board) granted a contractor’s motion to compel which had asserted that the Department of Labor (DOL) failed to describe in sufficient detail many of the documents itemized in the DOL’s privilege log. The Board admonished that litigants who withhold documents on the basis of a legal privilege must (1) furnish a privilege log, and (2) provide sufficient detail in that log to allow the opposing party or tribunal to learn the nature of the document withheld and justification for the privilege asserted.

In this matter, the contractor filed a motion to compel following its receipt from the DOL of a log that had claimed legal privilege associated with 1,300 responsive documents. The contractor complained that the privilege log did not adequately identify the documents listed or the bases for the privilege asserted. In its order, the CBCA found the DOL’s privilege log deficient for two reasons. First, the Board ruled that the “subject” column of the privilege log provided only generic descriptions that could not enable any meaningful privilege evaluation. For example, in instances where the DOL asserted the attorney-client and deliberative process privileges, it sometime described associated documents as broadly as “FW: Signed Agreement.” The Board ruled that no recipient of this description could make an adequate determination of or challenge to privilege. Second, the CBCA criticized the DOL in the instances where it failed to identify “any author and, in a few instances, any recipients of the document being claimed as privileged.” Rather than require the DOL to immediately produce all of the documents on its privilege log as the Appellant had asked, the Board instead allowed the DOL to revise its log to correct the deficiencies.

Because the Boards deem the Federal Rules of Evidence and Civil Procedure as advisory rather than mandatory, we pay close attention to Board decisions on discovery issues. To our knowledge, the Boards have issued very few recent decisions concerning the adequacy of privilege logs. This case carries import because it clarifies that the CBCA seems inclined to follow the Federal Rule of Civil Procedure requirements and case law governing privilege log adequacy. It also informs that the Board will require agencies to live up to the same rules that apply to contractors, even when agencies invoke doctrine unique to the government such as the deliberative process privilege.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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