Many litigants do not adequately focus on the exact requirements of a privilege log. In some cases, a mistake can be fatal to the party’s privilege claim, but in other situations courts are more forgiving.
In Hill v. McHenry, No. 99-2026-CM, 2002 U.S. Dist. LEXIS 6637, at *6 (D. Kan. Apr. 10, 2002), a court rejected privilege log entries indicating that documents were protected by the attorney-client privilege “and/or” the work product doctrine. The court also ruled that the privilege log was deficient because it did not specify the “purpose for which each document was created.” The court explained that these deficiencies would justify a finding that the party had waived the attorney-client privilege, but the court instead ordered the party to prepare a full and adequate privilege log.
Lawyers involved in privilege log preparation should not count on such lenient treatment, but may welcome a more liberal judicial approach if they make mistakes in their initial privilege log.