Concept
Consequences of Noncompliance
Asserting the privilege in discovery: withholding and the privilege log
Consequences of Noncompliance
Rule 26(b)(5)(A) gives a party that withholds otherwise discoverable material two duties: make the claim of privilege or protection expressly, and describe the nature of what is withheld so that other parties can assess the claim without learning the protected content.1 The rule attaches no sanction to either duty, so courts have supplied two consequences. Waiver strips the protection from a party that never made the claim in the required form or made it too late. Rejection denies the protection to a party that did serve a log whose entries cannot support the claim.
The two overlap at the edges, because some courts treat an inadequate log much as they treat none.2 Their questions still differ. Waiver asks how the party performed its duty; rejection asks whether what the party served proves the claim. The facts of a dispute usually point to one or the other.
Waiver of the Claim
A party that withholds material without making the claim, or without describing what it withholds, risks losing the protection altogether. The text of Rule 26(b)(5)(A) does not say so. Courts rely instead on the advisory committee, which warned in its note to the 1991 amendment to Rule 45 that a party who receives a discovery request and “asserts a privilege or protection but fails to disclose that claim is at risk of waiving the privilege or protection.”3 The warning has force because the description exists to let others assess the claim,4 and a party that gives them nothing to assess has, in practical effect, never asserted it.
Courts also call the duty mandatory. Rhoads Industries v. Building Materials Corp. held that the obligation to log privileged documents is mandatory under the specific terms of Rule 26(b)(5).5 Rhoads had identified 210,635 responsive e-mails and tried to filter out the privileged ones with address-line searches,6 yet privileged documents it produced appeared on none of the logs it served by June 30, 2008. Rhoads tried to justify, explain, and minimize the failure. The court found the delay in logging them until November 12, 2008 too long.7
The Second Circuit states the rule in permissive terms. In Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, it wrote that “the failure to comply with [Rule 26] may result in a finding that the privilege has been waived.”8 The word may makes waiver a possible result, not an automatic one, and the decisions below show what tips the outcome.
In Williams v. Sprint/United Management Co., a federal district court in Kansas applied the rule to electronic spreadsheets. The defendant resisted producing their metadata on the ground that it would reveal privileged communications or work product, but it neither objected nor produced a privilege log for the metadata. The court held attorney-client privilege and work product protection waived for the metadata, except metadata directly corresponding to the adverse impact analyses and Social Security number information that the court had allowed the defendant to remove.9 The Kansas decisions the court collected treat a failure to produce a log as a possible ground for waiver, and one adds that production of an inadequate log may be deemed a waiver.10
Timing often separates waiver from a cured default. Magistrate Judge Rueter found a plaintiff’s attorney-client privilege waived for all responsive documents because the plaintiff failed to produce a timely log as the court had ordered; the plaintiff served it nearly two months after the court’s date. By contrast, in In re Total Containment, Inc., Judge Fox found an amended log “sufficiently prompt as to avoid a waiver of all privilege,” relying on a decision in which a log came within four days of the original production and an amended log in under a month.11
Conduct matters as well as time. Rhoads’s attempts to justify its failure did not rescue it, and in Chevron v. Donziger the court listed among its considerations that the party’s handling of privilege claims, as in a related earlier case, was undertaken for tactical advantage.12 A short, explained, promptly cured default belongs near the Total Containment end of the range. A long, unexcused default, especially one undertaken for tactical advantage, invites waiver.
Waiver for failing to log answers a different question from waiver by inadvertent disclosure. The first asks whether a party that withheld material performed its duty to claim and describe it. The second concerns a protected document handed over by mistake. One court approaches that problem by first asking whether the producing party at least minimally satisfied three factors drawn from Rule 502: the disclosure was inadvertent, the party took reasonable steps to prevent it, and the party attempted to rectify the error.13 Rhoads shows how both questions can arise from one production: the privileged documents it produced were also missing from every log served by the deadline, and the court resolved the logging failure under Rule 26(b)(5).14
A fact pattern that reports withheld material, no log, and a request for waiver calls for questions in a fixed order. Was the failure justified? How late, or how absent, was the log? Did the party act in good faith, or for tactical advantage? Only if a protected document was actually produced does the inadvertent-disclosure test come into play.
Rejection of the Claim
A court may reject a claim it cannot assess, even when the party served a log. The rule requires a description that, without revealing protected information, “will enable other parties to assess the claim.”16 When the description fails that test, the consequence is production. One court put it this way: the description of each document and its contents must be detailed enough for the court to decide whether the elements of the attorney-client privilege, or of work product, have been established. “Failing this, the documents must be produced.”17
Rejection rests on the proponent’s burden. In RFF Family Partnership LP v. Burns & Levinson, the trial judge found that the B&L defendants had not carried their burden of establishing that the documents were privileged, because they neither produced a log under the Massachusetts counterpart of Rule 26(b)(5) nor otherwise described the documents well enough to permit a determination whether they were attorney-client communications or attorney work product.18 That is a failure of proof. The question is whether the record allows a finding that the elements are met, not whether a party has forfeited a sound claim by its conduct.
Strauss v. Credit Lyonnais, S.A. shows the same defect from the work-product side. The plaintiffs asserted work product protection in general terms and served no log. They also failed to show either that the documents were prepared in anticipation of litigation or that a party’s representative prepared them.19 A general assertion unsupported by facts gives the court nothing to which it can apply Rule 26(b)(3).
Entries that omit the facts on which an element depends fail in the same way. In SmithKline Beecham Corp. v. Apotex Corp., many withheld documents named authors or recipients only as “employees.” A corporation’s privilege is waived when communications reach employees who did not need access to them. The court therefore found it impossible to assess whether those generically described people had any need for, or responsibility to act on, the supposedly confidential information, and it ordered twenty-eight documents produced.20
Compelling a proper log can change the result by itself. After the court in that case ordered the plaintiffs to submit a log, they produced 386 pages and found that nearly 100 documents they had originally considered privileged were in fact discoverable. When the defendants later sought about 200 more documents, the plaintiffs had to file another log, 89 pages long, for those.21 Describing each document showed the plaintiffs that nearly 100 of their claims were wrong.
A log that supplies the facts ends the dispute the other way. A district court held that attorney-client privilege protected roughly 250 items summarized in the defendants’ privilege log and denied the requester’s motion to compel those communications.22 In Chapman, the court found that the defendants had established that the communications at issue were protected by the attorney-client privilege or the work-product doctrine. The plaintiff identified no specific document he believed was unprivileged and none he wanted reviewed in camera, and the court denied his motion for production or in camera review.23 A requester who points to nothing specific leaves the court with nothing to compel or inspect.
The absence of a log does not always produce a ruling against the withholding party, because a court may decline to decide the claim at all. In a dispute over State Farm’s subpoena to the Rigsbys, the court acknowledged State Farm’s argument that the Rigsbys had alleged too few facts and provided no privilege log. It still declined to reach the merits, because the Mississippi district court where the action was pending was better suited, by its familiarity with the underlying litigation, to decide whether the information was privileged. The magistrate judge did not clearly err in declining to evaluate the claim on the merits.24
A fact pattern that reports a served log with conclusory entries asks whether the elements can be found on the record. The court’s options run from an order to serve a better log, to rejection of the claims it cannot assess, to production of those documents. A fact pattern that reports no log, or one served long after the deadline, belongs to waiver instead.