Many courts acknowledge that a litigant who fails to properly log protected documents might have to produce them. Interestingly, some courts use a “waiver” analysis, although the failure to log a protected document does not disclose any privileged communications (which would cause an express waiver) and does not seek some advantage by relying on the fact of legal advice (which would cause an implied waiver). It would be more appropriate to treat an inadequate log as amounting to a failure to establish the privilege — although the unfortunate outcome is the same either way.
Although many courts state in the abstract that a litigant failing to properly log a document can lose the privilege, most courts give litigants another chance. However, some courts are not as generous. In Hovis v. General Dynamics Corp. (In re Marine Energy Sys.), Case No. 97-01929-W, Adv. No. 98-80220-W, Ch. 7, 2006 Bankr. LEXIS 1655 (Bankr. D.S.C. July 17, 2006), the court granted defendants a second chance to adequately log documents. When the court found that defendants’ amended log was inadequate, it ordered defendants to produce the withheld documents.
Although litigants should be heartened by many courts’ willingness to give them another chance to adequately log documents, they should never count on a court’s generosity.