How Much Detail Must a Privilege-Supporting Affidavit Contain?

June 18, 2003

Those asserting the attorney-client privilege must carry the burden of proving it, and many courts require affidavits supporting privilege claims (either with the initial log, or if a dispute arises). How detailed must these affidavits be?

In Koehler v. Bank of Bermuda, Ltd., No. M18-302, Judgment No. 931745, 2003 U.S. Dist. LEXIS 1946, at *30 (S.D.N.Y. Feb 10, 2003), the Bank filed a supporting affidavit by its chief compliance officer stating (among other things) that the withheld documents were “intended to be and [were] in fact kept confidential” and were “made in order to assist in obtaining or providing legal advice or services” and “not disclosed to others for a non-privileged purpose.” The court found the affidavit insufficient, because it amounted to “a purely conclusory assertion.” The court explained that ” [p]arroting the applicable general legal standards is inadequate,” and for this and other reasons ordered privileged documents produced. Id. at *31.

Litigants preparing affidavits to support their privilege claims should become familiar with the level of detail required by the applicable court.