Courts Disagree About Giving Litigants a “Second Chance” in Preparing Privilege Logs

February 4, 2004

All courts acknowledge the general rule that a party might waive the attorney-client privilege or the work product doctrine by not providing a privilege log, or by submitting an inadequate log. Most courts give litigants a second chance, but other courts are less forgiving.

In Constar International, Inc. v. Continental Pet Technologies, Inc., Civ. No. 99-234-JJF, 2003 U.S. Dist. LEXIS 21132 (D. Del. Nov. 19, 2003), the court rejected defendant’s argument that plaintiff had waived the attorney-client privilege by not properly citing the protection in its privilege log. Just one day earlier, however, the court in In re Honeywell International Inc. Securities Litigation, No. M8-85 (WHP), 2003 U.S. Dist. LEXIS 20602 (S.D.N.Y. Nov. 18, 2003), found that Honeywell had waived the work product protection that might have otherwise have covered documents by initially asserting only the attorney-client privilege — and attempting to add a work product claim later. The court explained that “[p]arties should not be permitted to re-engineer privilege logs to align their privilege assertions with their legal arguments.” Id. at *15.

These two cases decided just one day apart highlight the importance of properly preparing privilege logs the first time — it is difficult to predict in advance whether the court will take the forgiving or the harsh approach.