The purpose of a privilege log is to provide sufficient information for the recipient of the log to determine whether the withheld information is, at least on its face, privileged. In short: “Trust, but verify.” See,...more
Every court seems to require litigants to log documents they withhold based on privilege or work product claims. Perhaps not surprisingly, hardly any log goes unchallenged by the adversary. Most of these disputes eventually...more
Last week’s Privilege Point described one court’s incredible requirement that litigants identify everyone who learned of a withheld document’s content — even if they were not shown as a recipient....more
The difficulty of handling privilege disputes can be especially pronounced in cases involving a prolonged discovery period and large corporate defendants with different document custodians. When a party chooses to withhold...more
Attorney-client privilege protection depends on content, and some work product claims also depend in part on content. Because a litigant's privilege log obviously does not disclose withheld documents' content, the adversary...more
In earlier times, litigants essentially trusted each other to withhold (without identifying) responsive documents protected by the attorney-client privilege or the work product doctrine. Now every court seems to require a...more
Former President Donald J. Trump filed a motion to appoint a Special Master to review the material seized by the FBI from Mar-A-Lago. The stated purpose of the review by the Special Master is to remove nonrelevant and...more
The Fifth Circuit recently reversed a district court’s dismissal of a motion to return property after the government’s seizure of protected attorney-client information in Harbor Healthcare Sys., L.P. v. United States, 5 F.4th...more
“But in-house counsel was copied on the email, isn’t that enough?” When a business faces the prospect of producing documents in litigation, determining which documents are protected by the attorney-client privilege and...more
Rule 26(b)(5) of the Federal Rules of Civil Procedure provides that, when a party withholds information otherwise discoverable by claiming the information is privileged or subject to protection as trial-preparation material,...more
Although the federal and most if not all state rules do not explicitly require privilege logs, all or nearly all courts demand that parties withholding protected documents describe them with specificity in a log. And all...more
Of eight disputed documents, six were found to be privileged. These include documents reflecting: - work conducted by one of Plaintiffs' engineers containing legal advice provided by one of Plaintiffs' attorneys based...more