January 4, 2023
In earlier times, litigants essentially trusted each other to withhold (without identifying) responsive documents protected by the attorney-client privilege or the work product doctrine. Now every court seems to require a privilege "log" listing the withheld documents (although the Federal Rules do not require such a "log").
Inexplicably, some lawyers prepare logs with page after page of the identical minimalist entries such as "email reflecting legal advice" or "email relating to legal issue." In Raymond v. Unum Group, the court approved defendants' privilege log descriptions in the face of the adversary's challenge — concluding that they "do more than generally state that the communications were for purposes of rendering or obtaining 'legal advice.'" Civ. A. No. 20-352-BAJ-EWD, 2022 U.S. Dist. LEXIS 188715, at *7 (M.D. La. Oct. 17, 2022). The court noted that each entry included the subject matter of the purported legal advice, such as: "legal advice regarding insured's eligibility" for certain benefits; "requesting legal advice regarding insured's earnings"; "providing legal advice regarding [plaintiff's] eligibility for benefits," etc. Id. at *7-8.
Courts normally give litigants a second chance to upgrade their privilege log, but wise lawyers prepare a more detailed log from the beginning. Such savvy lawyers also: avoid boilerplate repetitive entries; recognize that extensive wordy entries may be more successful; and assure that the first few pages of a lengthy privilege log are the most carefully prepared.