Courts Debate the Waiver Effect of Late or Inadequate Privilege Logs

February 2, 2005

All courts recognize in the abstract that a litigant’s failure to file a timely and proper privilege log can result in loss of the attorney-client privilege protection (either because a litigant has failed to carry the burden of proof, or has waived the protection). However, in practice, courts do not always apply such a harsh sanction.

Four federal court decisions issued in just a 25-day period highlight the differing approaches: Grill v. Costco Wholesale Corp., No. C03-2450RSM, 2004 U.S. Dist. LEXIS 21400, at *4 (W.D. Wash. Oct. 8, 2004) (finding that the plaintiff had waived the attorney-client privilege by failing to disclose the existence of four allegedly privileged documents, whose existence was revealed for the first time at her deposition; rejecting the plaintiff’s argument that her “general objection to the production of privileged documents” was sufficient to preserve the privilege); Wilderness Soc’y v. United States Dep’t of the Interior, 344 F. Supp. 2d 1 (D.D.C. 2004) (in a FOIA case, holding that the government’s log was inadequate because the entries for some documents did not even list the authors or recipients, but giving the government 30 days to submit an amended log); Felham Enters. (Cayman) Ltd. v. Certain Underwriters at Lloyd’s, Civ. A. No. 02-3588 c/w 04-624 SECTION: “N” (4), 2004 U.S. Dist. LEXIS 20983, at *10 (E.D. La. Oct. 19, 2004) (finding that the defendant’s insurance company waived the attorney-client privilege by filing a privilege log later than the rules required, and failing in the final log to “provide an adequate description of the subject’s content”); United States v. British Am. Tobacco (Invs .) Ltd., 387 F.3d 884 (D.C. Cir. 2004) (in the Federal Government’s RICO case against tobacco companies, finding that BAT had improperly failed to log a foreign document it claimed to be privileged, but finding that waiver was too severe a sanction, and remanding so that BAT could log the document).

Litigants who fail to timely and properly submit a privilege log may have to rely on favorable case law to avoid a disastrous finding of waiver.