Company Pays the Price for a Late Privilege Log

October 19, 2005

Courts frequently give litigants a second (and even third and fourth) chance to properly log privileged documents. However, an improper log provides good cover for a court that wants to make companies produce privileged documents.

In Burlington N. & Santa Fe Ry. Co. v. United States District Court, 408 F.3d 1142 (9th Cir. 2005), the Ninth Circuit discussed the interplay of Fed. R. Civ. P. 26(b)(5) (which requires a privilege log for withheld documents) and Fed. R. Civ. P. 34 (which does not specifically require a log). The Ninth Circuit rejected both a per se waiver rule that would require production of any documents not on the log, and a rule permitting boiler-plate objections in a Rule 34 response. The court held that Burlington’s five-month delay in filing a log supported the district court’s finding of a waiver of all Burlington’s privilege claims, noting that “Burlington is a sophisticated corporate litigant and a repeat player in environmental lawsuits.” Id. at 1149. The Ninth Circuit refused to grant a writ of mandamus.

Companies in a hostile court (or circuit) should never give the court grounds for stripping away their privileges.