Courts Disagree About the Effect of a Party’s Failure to Log Protected Documents

December 26, 2007

Although the federal rules do not explicitly require a privilege log, as a practical matter nearly every court requires that litigants withholding documents describe them on a log (and many courts’ local rules specifically require such a log).

Not surprisingly, courts disagree about the appropriate remedy for a party’s failure to log protected documents. In Agee v. Wayne Farms, L.L.C., No. 2:06cv268KS-MTP c/w 2:07cv29KS-MTP, 2007 U.S. Dist. LEXIS 73396 (S.D. Miss. Oct. 1, 2007), the court held that plaintiffs’ failure to log documents forfeited their privilege and work product claims. Eight days later, another federal court held that defendants’ failure to log documents did not have that dramatic an effect. Saca v. J.P. Molyneux Studio, Ltd., No. Civ. S-06-2818 MCE EFB, 2007 U.S. Dist. LEXIS 77362 (E.D. Cal. Oct. 9, 2007). Citing a Ninth Circuit case, the court indicated that determining the appropriate remedy involves a “holistic reasonableness analysis.” Id. at *8 (citation omitted).

While not every court would take a California-like “holistic reasonableness” approach, some courts obviously seem more forgiving than others.