Court Adopts an Unforgiving Approach to Privilege Logs

June 28, 2002

Although some courts will give litigants a “second chance” to prepare an appropriately complete and detailed privilege log, other courts are less forgiving. Such a harsh approach can be especially troublesome in situations where every litigant has trouble compiling a privilege log — such as with handwriting that is difficult to read and identify.

In American Casualty Co. v. Healthcare Indemnity, Inc., No. 002301-DJW, 2002 U.S. Dist. LEXIS 952 (D. Kan. Jan. 21, 2002), the court held that a party’s failure to indicate on a privilege log whose handwriting appears on documents meant that the documents would have to be produced with the handwriting.

As tempting as it is to put off such onerous tasks as identifying the author of handwriting that might be protected by the attorney-client privilege or the work-product doctrine, litigants delaying such a task risk losing the fight over the handwriting.