The Courts Discuss Remedies for a Litigant’s Inadequate Privilege Log

June 24, 2009

Most courts require (or at least expect) litigants to prepare privilege logs describing withheld documents. However, courts debate the effect of a litigant’s inadequate log.

In NLRB v. Jackson Hospital Corp., Misc. A. No. 07-549 (JMF), 2009 U.S. Dist. LEXIS 41369, at *5 (D.D.C. May 15, 2009), the court explained that the “inadequacy of a privilege log can be remedied in four ways”: (1) giving the litigant another chance; (2) finding a complete waiver; (3) reviewing all of the withheld documents in camera; (4) reviewing some of the withheld documents in camera. The court ultimately picked the fourth option. Several weeks earlier, the Eastern District of Pennsylvania picked the third option. SmithKlineBeecham Corp. v. Apotex Corp., Civ. A. Nos. 99-4304, 00-4888, 01-159 & 01-2169, 2009 U.S. Dist. LEXIS 38122 (E.D. Pa. May 4, 2009). The day after that decision, the Northern District of California picked the first option. Ctr. for Biological Diversity v. OMB, No. C 07-04997 MHP, 2009 U.S. Dist. LEXIS 38188 (N.D. Cal. May 5, 2009).

Fortunately, most courts take a fairly forgiving approach to a litigant’s inadequate privilege log. However, courts taking a more harsh approach can point to legal justification for finding a complete waiver.