District Judge Overturns a Magistrate’s Harsh Privilege Ruling

January 2, 2008

An earlier Privilege Point (September 5, 2007) described a harsh magistrate judge’s opinion ordering Target to produce documents on its privilege log, because Target had failed three times to produce what the magistrate thought was an acceptable privilege log.

The district court judge has now reversed the magistrate’s opinion. Muro v. Target Corp., No. 04 C 6267, 2007 U.S. Dist. LEXIS 81776 (N.D. Ill. Nov. 2, 2007). First, the district court judge disagreed with the magistrate judge’s ruling that Target should have included a separate privilege log entry for each e-mail in e-mail strings. The judge explained that a party could include in one privilege log entry an e-mail to a lawyer and the e-mails being forwarded to the lawyer. The earlier e-mails would be produced to the adversary elsewhere, and forcing a litigant to log the forwarded e-mail might allow the adversary “to discover the topic or contents of material forwarded to counsel” — thus revealing a privileged communication. Id. at *45. Second, the district court judge disagreed with the magistrate’s conclusion that Target forfeited the privilege by circulating privileged e-mails too widely. The district judge noted that “no rule of law . . . puts a numerical upper limit on the number of corporate employees who can be within the sphere of privilege.” Id. at *48. Third, the judge agreed with the magistrate that Target should have identified all e-mail recipients and described their titles, but reversed the magistrate’s order requiring Target to produce the e-mails. The judge gave Target one more chance to prepare a proper privilege log.

The district court judge’s opinion in Muro provides a refreshing common-sense approach to the logging of voluminous e-mails.