Courts universally require a party withholding documents on the basis of the attorney-client privilege or work product doctrine to carry the burden of proving the protection’s applicability. A party which neglects to produce a detailed privilege log risks failing to carry this burden. Some courts give the party a second chance, but others are less forgiving.
In Consolidated Grain & Barge Co. v. M/V CSS Atlanta, No. 99-687 SECTION “C” (2), 2000 U.S. Dist. LEXIS 5700, at *4 (E.D. La. Apr. 24, 2000), for instance, the court found that a party had violated Fed. R. Civ. P. 26(b)(5) by failing to provide a detailed privilege log. The court warned that “all such privileges will be deemed waived” absent such a log, but allowed the party ten days to produce one.
Another recent decision took the opposite approach. In McCoo v. Denny’s Inc., 192 F.R.D. 678, 680 (D. Kan. 2000), the court recognized that “a ‘blanket claim’ as to the applicability of the privilege/work product doctrine does not satisfy the burden of proof.” The court noted that a party’s failure to meet its burden of proof “is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made.” Based in part on the party’s failure to provide a sufficient privilege log, the court generally overruled Denny’s attorney-client privilege and work product claims.
Lawyers and clients should be familiar with the likely attitude of the court in which they are litigating—some courts might offer a second chance but others will be less charitable. It is always best to provide a sufficiently detailed privilege log the first time.