Courts’ Privilege Log Requirements Demand Difficult-to-Obtain Information

November 29, 2006

Nearly every court requires a party withholding documents during discovery to provide some description of the withheld documents on a “privilege log.” Such logs normally include information such as type of document, date, author, recipients and basis for the protection. However, some troubling decisions demand much more.

In Turner v. Moen Steel Erection, Inc., No. 8:06CV227, 2006 U.S. Dist. LEXIS 72874, at *5 n.1 (D. Neb. Oct. 5, 2006), the court held that defendant’s privilege log did not comply with the court’s order, which required that logs include (among other things) “the identities and positions of all persons who were given or have received copies of [withheld documents] and the dates copies were received by them.” A couple of weeks later, another court required litigants withholding documents to identify (among other things) “all persons or entities known to have been furnished the documents or informed of their substance.” National Fire & Marine Ins. Co. v. Gurr, No. 3:05-CV-0658-BES (VPC), 2006 U.S. Dist. LEXIS 75974, at *16 (D. Nev. Oct. 18, 2006).

Depending on the size of the company and the age of the document, it could be nearly impossible to include this information on a privilege log — unless someone interviews every recipient of the document (even those not listed on the document itself).