One widespread misperception about attorney-client privilege and work product doctrine assertions is that the Federal Rules require a privilege log. As one court bluntly put it, "no where in Fed. R. Civ. Pro. 26(b)(5) is it mandated that a document-by-document privilege log is required, if a party seeks to withhold documents based on privilege or work product." Durkin v. Shields (In re Imperial Corp. of America), 174 F.R.D. 475, 477 (S.D. Cal. 1997). That Federal Rule’s Advisory Notes themselves acknowledged that a detailed privilege log "may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories." Fed. R. Civ. P. 26 advisory committee's note to 1993 amendments.
In Oracle USA, Inc. v. Rimini Street, Inc., Case No. 2:10-cv-00106-LRH-VCF, 2020 U.S. Dist. LEXIS 176646, at *19 (D. Nev. Sept. 25, 2020), the court held that it would "not second guess" the Magistrate Judge, who "considered [defendant's] assertion of privilege based on a category of documents." About one month later, in EFCG, Inc. v. AEC Advisors, LLC, the court addressed plaintiff's privilege claims after describing the background: "[s]ometime prior to September 18, 2020, EFCG produced a categorical privilege log with respect to the documents . . . listing three categories comprising a total of 16 email chains and service tickets." No. 19-CV-8076 (RA) (BCM), 2020 U.S. Dist. 203175, at *1 (S.D.N.Y. Oct. 30, 2020).
Although nearly every court normally requires a detailed privilege log, lawyers should remember that in some situations categorical logs will suffice.
Published January 20, 2021.
