Carrying the Burden

Carrying the Burden

Rule 26(b)(5)(A) directs a party that withholds information as privileged to make the claim expressly and to describe the withheld material well enough for other parties to assess it.¹ Those commands produce a log, but the rule's words call only for a claim and a description. The allocation of proof comes from decisions applying the rule: a party that invokes a privilege bears the burden of proving that it applies, and it must support the claim specifically and factually.² A served log, however carefully built, is an assertion still waiting for proof.

Many withholding parties act as though serving the log passes the work to the other side. They proceed, one court observed, as though their opponent must undermine their unsupported claims of privilege, or as though the court's task is to protect their communications for them, and neither is the case.³ The allocation makes sense because the proponent alone holds the facts. A privilege claim turns on who wrote a document, who received it, why, and whether the communication stayed confidential. A requester that sees only a log entry cannot disprove facts it cannot see, and a rule that made the requester try would let a holder prevail by saying very little. The privilege also impairs the court's search for the truth, so courts construe it narrowly, which points the same way.⁴

The burden attaches to each protection in the same way. The party asserting attorney-client privilege must establish it, and, as with that privilege, the party opposing discovery on work-product grounds must establish that the doctrine immunizes the documents at issue.⁵ The proof proceeds document by document, and a blanket claim that fails to specify what information is protected will not suffice.⁶ The log is where that specificity shows. In Amgen Inc. v. Hoechst Marion Roussel, Inc., the court put the requirement this way: the description of each document and its contents must be detailed enough for the court to decide whether the elements of attorney-client privilege, or in other cases the work-product doctrine, have been established, and failing that, the documents must be produced.⁷

A log exists so that the other side can assess a claim. One electronic-discovery protocol states the function plainly: the log identifies each document for which privilege is claimed and describes its nature, without revealing privileged information, so that the requester can assess whether the privilege applies.⁸ Assessing a claim is different from proving it. The log informs the adversary and the court, and the proponent must still supply description and support specific enough to show the elements. Conclusory support will not do. The party resisting discovery must explain its objections and provide support for them, and it cannot discharge that burden with mere conclusory or ipse dixit assertions.⁹

Recipients show the burden at work most clearly. Where the client is a corporation, the privilege is waived if a communication reaches employees who did not need access to it. In one dispute, a substantial portion of the withheld "common interest" documents listed their authors or recipients merely as "employees." The court found it impossible to assess whether such generically described people had any need for, or responsibility to act on, the allegedly confidential information, and it ordered twenty-eight documents produced.¹⁰ The log there invoked the privilege. What it lacked was information about who received the documents, and the proponent bore the cost of that gap.

The failure can also be total. In RFF Family Partnership LP v. Burns & Levinson, the trial judge found that the defendants had not carried their burden of showing the documents were privileged. They had produced no privilege log as Massachusetts Rule 26(b)(5) requires, and they had not otherwise described the documents adequately "so as to permit a determination of whether or not they are privileged, either as an attorney-client communication or as attorney work product."¹¹ The two failures differ in degree. One involved a log with a gap about recipients, and the other involved neither a log nor an adequate description.

None of this bars a requester from bringing facts of its own. In a dispute over more than 1,500 logged documents, the plaintiffs moved to compel and alleged that defendants' deposition witnesses had confirmed that each defendant's individual counsel attended negotiating sessions and discussed legal advice with nonclients.¹² A requester with facts like those can use them. A requester without them is not defeated, because the proponent's showing has to stand on its own.

Consider a manufacturer that serves a log of thirty withheld emails, each tagged "attorney-client privileged," with authors and recipients identified only as "employees." The requester moves to compel and offers nothing beyond the log. The manufacturer cannot answer that the requester failed to rebut the claims. Nothing in the log lets the court tell whether any recipient needed access, so the entries are likely to be ordered produced. An exam stem that says a log was served and the requester offered no evidence against any entry is asking who had to produce evidence in the first place, and the answer is the proponent. Ask whether the log, with whatever support accompanies it, shows for each document the facts the claimed protection requires. Vague recipients, conclusory assertions, or no log at all leave the burden unmet and the claim exposed to rejection. The next section turns to a separate question: when the log must be served.