A privilege log is the absolute bane of an attorney’s existence. I don’t mean it isn’t important and a critical component of discovery, but the level of planning, analysis and detail required to complete such a log is tedious, expensive and inherently subjective. And the timing to produce the log — it always follows the grueling process of getting a production out the door or at the end of discovery (depending on the parties’ agreement) — ramps up the joy quotient.
Simply put, if the log is not planned out both in the ESI protocol and before review starts, the work to create it after review is complete is just plain hard and even more expensive. In cases with tens of thousands or millions of documents, the log can contain thousands of entries, each of which has to be reviewed and coded with the fields required by FRCP 26(b)(5)(A) and in conjunction with any agreement between the parties. And I don’t think I’m alone when I say that the level of detail required for a log is nebulous at best and always open to the subjective review of the judge.
Fights over documents included on privilege logs are extremely common — in the first 7 months of 2020 alone, eDiscovery Assistant has identified 88 decisions to date where the parties disagree over the whether documents on a privilege log should be there or are adequately represented, or seek in camera review by a court to confirm documents are truly privileged. That number is a big jump from 2019 which saw 86 privilege log issues all year, and from 2018 which saw 79.
But courts have made it clear that asking for in camera review of documents a party does not believe are privileged from the information on a privilege log is a high bar that not even the best pole vaulter could clear, and more recent decisions have made it clear that the adequacy of the description of the contents of the document is what will carry the day.
In a July 14, 2020 decision in Washtena Cty Employees’ Retirement Sys. v. Walgreen Co. et al., Magistrate Judge Gabriel Fuentes denied plaintiffs’ request for in camera review of 75 documents included on Walgreens’ privilege log where the descriptions all alleged “legal” review of issues that were highly disputed in the case. Plaintiffs sought review not only of the documents in question, but hoped that guidance from the court’s decision on the review of those documents would be instructive to the parties’ on additional disputes over logged documents.
Any lawyer embarking on discovery or in the process of discovery now where a privilege log will have be be generated should review Judge Fuentes decision — it succinctly lays out the both the history of and the law on the attorney-client privilege from both the Supreme Court and the Seventh Circuit (where the ND Ill is situated):
The attorney–client privilege is the oldest of the privilege[s] for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client. To establish that the attorney-client privilege blocks disclosure of a communication, the proponent of its application must establish that (1) legal advice of any kind was sought, (2) the legal advice was sought from a professional legal advisor in his or her capacity as such, (3) the communications related to that purpose, and (4) the communication was made in confidence.
. . .
Per Upjohn, with respect to the internal communications within a corporation, the attorney-client privilege extends only to an employee who communicates with counsel at the direction of corporate superiors regarding matters within the scope of the employee’s duties for the purpose of securing legal advice. Communications in which counsel is not a sender or recipient may also be privileged if they “reveal, directly or indirectly, the substance of a confidential attorney-client communication.”
Judge Fuentes then goes on to apply those black letter concepts to the privilege log and that the court ought to not engage in an in camera review where it is not warranted:
In a matter as complex as the instant case, parties spend thousands of attorney hours poring over thousands of documents, plucking out those that may support a privilege claim, deciding whether to assert the privilege claim, and then going about the task of describing the documents and the claim in a manner that will pass muster. . . The judicial discretion to review the described documents in camera has turned on multiple factors, including the burden involved in reviewing the sheer number of documents, but the thrust of these cases is that in camera review is more critical before compelled disclosure, so courts might make sure that the disclosed materials truly are not privileged. But ultimately the question of whether to engage in an in camera review lies within the Court’s discretion, and the Court ought not to engage in an in camera review of even a manageable number of documents if the review is not warranted. Where a court’s discretion is involved, “two judges can reach two correct yet contrary conclusions based on identical fact patterns.”
This case included five categories of documents for analysis as to whether in camera review was appropriate, and in a nutshell, the court found that absent further allegations from plaintiffs, the information on the descriptions in the log was sufficient to establish privilege and not enough to warrant in camera review:
- Communications Between Non-Attorney Employees: There was no basis for in camera review where the log descriptions indicated that the documents sent between employees with no attorneys on them concerned “legal” matters and plaintiffs offered no concrete evidence other than speculation that communications were of a business or non-legal nature.
- Emails Copying In-house Counsel: While conceding that a simple cc to in-house counsel does not suddenly cloak an otherwise non-privileged document in privilege, similar to the category of emails between non-attorney employees, the description of the document is what carries the day and “[t]he addition of one or more attorneys to the distribution list does not make the descriptions of their privileged character any more or less adequate”. Where the subject matters are highly relevant to the disputed issues in the case, the privilege applies and in camera review is not warranted.
- Communications Disseminated “Widely” and Through Distribution Lists: This category was less about the description and more about the recipients. The court rejected plaintffs’ argument that wide distribution of messages negated the privilege of documents after Walgreens identified the recipients of the distribution list as outside counsel or consultants on the litigation and plantiffs did not refute Walgreens’ position. The court did note that the identity of the attorney who was the source of the legal advice was not disclosed on the log, but held that due to the complexity of the case “[t]he lack of identification of these attorneys does not engender a disbelief in the veracity of the log entries sufficient to require in camera review. In any event, the Court is not persuaded that further identification of the lawyers who gave the advice is proportional to the needs of the case at this time.”
- Communications “Reflecting,” “Circulating,” or “Discussing” Legal Advice: Reiterating its point that legal advice needs to be disseminated, the court rejected this category of documents for in camera review again in reliance on the description: “Not surprisingly, attorney reviewers who come across emails that ‘reflect’ the legal advice or that contain the advice as internally disseminated will commonly put such documents on the privilege log, and if the description is sufficient to establish that the documents do contain legal advice, as opposed to business advice or non-privileged communications, in camera review is not necessary. “
- Purportedly “Non-Privileged” Matters: This category seemed to include drafts of documents and disclosures to investors — both of which the court found were properly labeled as privileged: “corporations often consult their attorneys about what to include in such drafts, what to remove from them, and ultimately what ought to be the contents of the final document that is released publicly. Disclosures to investors are critically important for corporations in view of the securities laws that Plaintiffs here assert were violated by Walgreens, so it is no surprise that Walgreens would seek legal advice about them. The log entries claimed to be insufficient to establish privilege state specifically that the communications “reflect[ ]” requests for legal advice about the content of draft earnings disclosures and an earnings-related press release.”
The final issue between the parties concerned attachments to otherwise privileged emails, and it’s an important point. Attachments to documents that are withheld require their own separate line entry and description. Walgreens failed to provide a separate description of the attachments but instead stated that where they were privileged, it withheld them, and where they were not, it produced them. That was insufficient for the court: “It is unclear whether Walgreens separately logged the attachments or provided a separate description of the senders and recipients, the privileged content, the date, and so forth. No such separate descriptions are evident from within the log entries supplied to the Court. Using Item No. 1 as an example, we know that Rick Hans sent an email to Snehal Shah and Nicholas Zanger on June 5, 2014, and that the email was “circulating request for legal advice from in-house counsel re public disclosures.” (Id.) We know also that there is an attachment. Was the attachment the request for legal advice? Who made the request and to whom? This information is fundamental to evaluating the privilege claims as to the attachments.” However, rather than conduct an in camera review, the court ordered the parties to meet and confer on providing additional descriptions for documents withheld.
Judge Fuentes decision sheds light on a murky area of what should be included on a privilege log and the difficulty of obtaining in camera review of documents from a log. No matter what side you are on, focus on the description of the document. If you are writing it, make sure it clearly denotes the basis for the privilege. If you are challenging it, make sure that either the description is not sufficient and you’ve already asked for a better one, or that you have legitimate evidence to suggest the document is not privileged to trigger in camera review. Mere speculation won’t do it.