Court Takes a Common Sense View of Fights Over a Privilege Log

December 8, 2004

Every court recognizes that a party claiming privilege or work product protection must carry the burden of proof, and provide specific support for the asserted protection – document by document if necessary. However, courts disagree about when the proponent of a protection must come forward with specific support.

In SEC v. Beacon Hill Asset Management, LLC, No. 02 Civ. 8855 (LAK)(HBP), 2004 U.S. Dist. LEXIS 15031 (S.D.N.Y. Aug 3, 2004), the SEC argued that Beacon Hill had not provided the specific support for each document on its privilege log, and moved to compel production of all the documents. The Southern District acknowledged the SEC’s point, but explained that “in the absence of a specific challenge, specifically addressing BH’s assertion of the attorney-client privilege with respect to these documents, I do not believe any such showing is required. Any other procedure would transform the requirement of providing an index of withheld documents into an obligation to provide evidence of every element of the privilege as to every document withheld.” Id. at *20 (citation omitted)

Litigants should not count on every court taking such a common sense approach, but the Southern District’s explanation makes great sense – especially in large document productions.