Federal and State Courts Order Detailed Privilege Logs

May 2, 2007

The vast majority of courts require a party or non-party withholding documents to describe them on a privilege log. In some situations, courts seem to require too much detail.

In Nicholson v. Keyspan Corp., No. 17458-2006. 2007 N.Y. Misc. LEXIS 104, at *12 (N.Y. Sup. Ct. Jan. 19, 2007) (unpublished opinion), a New York state court ordered the defendants to create a privilege log, including “the employment capacity of the individual who created the document.” For each document claimed to be protected by the work product doctrine, the court also ordered the defendants to identify the “particular litigation or case involved,” and to provide “factual specifics” supporting the work product claim, “with reference to the line and page of the document involved.” Id. at *12-13. On the same day, an Indiana federal court ordered a non-party withholding documents to identify each withheld document’s author and recipients, “together with their capacities.” Laun v. Laun, Cause No. 1:06-CV-246, 2007 U.S. Dist. LEXIS 4500, at *8 (N.D. Ind. Jan. 19, 2007). The court also indicated that “where appropriate, [the non-party] should explain why the privilege attaches to an entire document, and not just to a portion.” Id.

Although it was unclear in these cases how many documents were at issue, corporations should note this troubling trend requiring such detailed information on privilege logs.