Court Takes an Unforgiving Approach in a Privilege Fight

September 26, 2007

Given the extensive effort and frequently huge costs incurred by a litigant preparing detailed privilege logs and supporting detailed affidavits, many courts require such efforts only if the adversary challenges a privilege claim. However, some courts exhibit a much more harsh attitude.

In Brown v. American Partners Federal Credit Union, 645 S.E.2d 117 (N.C. Ct. App. 2007), defendant Credit Union withheld documents during discovery, eventually submitting a general affidavit from its president supporting its privilege and work product claims. The trial court nevertheless ordered Credit Union to produce several withheld documents, and the appellate court upheld the order. Among other things, the appellate court (1) rejected Credit Union’s argument that one document deserved attorney-client privilege protection, because it had only mentioned work product protection on its privilege log and in the argument before the final court; and (2) found that a board meeting was not a privileged event, because Credit Union had not identified the role of a “Valerie Marsh” shown in corporate board minutes as having attended the board meeting. The appellate court noted that Credit Union had not filed an affidavit “identifying the people present at the board meeting, their corporate responsibilities, and their relationship to the dispute at issue.” Id. at 123.

Litigants should familiarize themselves with the courts involved in privilege calls, so they know whether the courts will take a forgiving or an unforgiving approach.