All or nearly all courts require litigants to log documents withheld on privilege or work product grounds (with an exception discussed next week). But they disagree about what the log should include — with some courts taking an unrealistically expansive view.
In G.K. v. D.M., Civ. A. No. 21-2242 Section “T” (2), 2024 U.S. Dist. LEXIS 49011, at *17 (E.D. La. Mar. 20, 2024), the court adopted the majority approach — requiring the log to identify a withheld document’s “date, … author and all recipients of each document listed therein” (along with the asserted protection and an explanation of why it applies). But a few weeks earlier, the court in B&G Foods North America, Inc. v. Embry required all of that — and also identification of “all persons or entities known to have been furnished the document or informed of its substance.” No. 2:20-cv-0526 KJM DB, 2024 U.S. Dist. LEXIS 37370, at *11 (E.D. Cal. Mar. 1, 2024) (emphasis added). It is not difficult to imagine how this could be essentially impossible in a corporate setting — without interviewing every author and recipient of a withheld document to ask whether they discussed its substance with anyone else.
Presumably litigants in that court do the best they can. Next week’s Privilege Point addresses a more global question — must litigants log withheld documents they created during the litigation?
Published August 5, 2024.