There have been a few interesting cases cases and articles concerning privilege review and logs over the last six months or so. Privilege review has always beenan interest of mine as it seems an area where technology, big data, case law and legal history intersect.
- Delaware Courts update ediscovery guidelines including privilege review and logging suggestions. For example, parties are free to agree to log certain types of documents by category instead of on a document-by-document basis
- Judge Facciola uses the case of Chevron Corp. v. The Weinberg Group, to offer his suggestions and reminders on privilege log basics. For example, Mechanically Produced Boilerplate Language Will Not Be Tolerated.
- In Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. A ruling on the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), led the court to note “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered.
More Detail Below
1) Delaware court of Chancery Updates –Ediscovery Guidelines( Including privilege and privilege logs)
The “Discovery Guidelines” emphasize the continued importance of privilege log and that the senior attorney on a case must take an active role and reasonable steps during the privilege review and preparation of privilege logs. The guidelines provide suggestions for handling privilege log issues:
- The parties are not expected to log post-litigation communications;
- The parties are free to agree to log certain types of documents by category instead of on a document-by-document basis; and
- With respect to email chains, parties should attempt to agree on the procedures that both sides will use.
The guidelines do suggest given the cost or privilege review that parties can be flexible and creative in this area. The court encourages the parties to make agreements that reduce the time, expense, and burden associated with conducting a document-by-document privilege review.
2) Judge Facciola on Privlege log basics: Chevron Corp. v. The Weinberg Group, Misc. Action No. 11-409 (JMF), 2012 U.S. Dist. LEXIS 137826 (D.D.C. Sept. 26, 2012),
Article with link to full case: http://www.applieddiscovery.com/ws_display.asp?filter=Blog_Detail&item_id=%7B3AAE8B8A-C265-4F73-BB3B-C4217BB0E13E%7D
Judge Facciola took the opportunity in Chevron Corp. v. The Weinberg Group, to describe the persistent shortcomings of many litigants, particularly in the age of Big Data, in complying with the Federal Rules of Civil Procedure (FRCP) with respect to privilege logs. In his opinion, Judge Facciola went on to offer practical steps and examples that litigants can use to create logs that meet the requirements in the FRCP. He also warned of dire consequences awaiting those who refuse to comply.
Calling it “startling how common the insufficient entry is in most privilege logs,” Judge Facciola reminded the litigants of their basic duty under Rule 26(b)(5)(A)(ii) regarding claims of privilege to “‘describe the nature of the documents . . . not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.’” From a proper entry, “the opposing party should be able . . . to assess whether the claim of privilege is valid.”
Mechanically Produced Boilerplate Language Will Not Be Tolerated. Judge Facciola reasoned that the rise of Big Data has compounded the problem of insufficient log entries because technology allows the party creating a log to simply repeat the same “generic” descriptor over and over for a large number of entries without a “human being evaluating the actual, specific contents of [each] particular document.”
Moreover, the party creating the log can hide behind its meaningless descriptor and potentially suppress discoverable documents. In Chevron, the defendant used a slight variation of the same phrase for all e-mail entries. Without information tailored to each e-mail, Judge Facciola pointed out that it was impossible to ascertain whether the assertion of privilege was legitimate, such as a substantive discussion with a lawyer (opinion work product), or invalid, as in the case of an e-mail simply transmitting a report to a lawyer (fact work product).
Produce Fact Work Product and Redact Opinion Work Product. Judge Facciola ordered the defendant to review the documents it claimed were privileged, produce the fact work product, redact the opinion work product, and submit “a description of the excised material that complies with Rule 26 by explaining why the redacted portion qualifies for protection.” Judge Facciola emphasized that his instructions were not to be taken lightly, and other litigants should take heed. He warned, “I expect specific and clear claims of privilege as to each redaction made. I will hold counsel to their 26(g) obligations ruthlessly, and, at a minimum, hold that the privilege is waived whenever the obligations I am imposing are disobeyed.”
3) Court: rule 502(d) Order provided right to claw back – no matter what the circumstances. Subtitled- always check text that is provided with redacted documents. Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)
This motion involved the inadvertent production of privileged information contained in drafts of five separate documents. These documents were produced in redacted form but all of the text but could be viewed in the metadata (I would guess the original extracted text was produced for these items instead of OCR’ing the documents after they were redacted and replacing the original full extracted text with the redacted OCR text). The court noted that such an event emphasized “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered. Defendant “had the right to claw back the minutes, no matter what the circumstances giving rise to their production were.”