Although the federal rules do not explicitly mandate a privilege log, they require a litigant withholding documents to describe them. Most courts point to this provision as requiring a privilege log, but take widely varying approaches to such logs. Several decisions issued at about the same time highlight courts’ disagreements.
In Lurensky v. Wellinghoff, Civ. A. No. 08-1199 (HHK/JMF), 2010 U.S. Dist. LEXIS 92613, at *31 (D.D.C. Sept. 3, 2010), widely respected U.S. Magistrate Judge John Facciola acknowledged with his usual refreshing frankness that he finds “privilege logs to be on the whole useless.” Judge Facciola also explained that he reviewed both a log and the adversary’s objections to the log and “frankly, can make neither heads nor tails of either.” Id. The judge decided to review the documents himself. Four days later, a Delaware court took a much harsher approach. In Klig v. Deloitte LLP, C.A. No. 4993-VCL, 2010 Del. Ch. LEXIS 193, at *15 (Del. Ch. Sept. 7, 2010) (not released for publication), the court found that Deloitte’s law firm (Skadden Arps) had “intentionally produced chaff” by using boilerplate document descriptions in a privilege log. The court noted that Deloitte’s “counsel knew how to prepare an adequate log” because another Delaware court had earlier found a similar log insufficient. Id. at *14. The court had noted earlier in a discovery hearing that allowing an amended log would reward such improper conduct, because the “only thing that happens when you then get challenged on it is you actually have to go back and do what you . . . should have done in the first place.” Id. at *10 (internal quotations omitted). The court overruled Deloitte’s privilege claims, although it stayed its order to allow an interlocutory appeal.
Three other cases decided exactly seven days later show a similar dichotomy. These will be discussed in next week’s Privilege Point.