Courts Take Differing Positions on Privilege Logs: Part II

November 24, 2010

Last week’s Privilege Point highlighted courts’ different attitudes toward litigants’ inadequate privilege logs. Exactly one week after the second of those decisions, three other courts issued similarly divergent opinions.

One court found that the litigants did not have to even bother logging privileged communications between clients and lawyers (along with “all support staff and vendors”) “regardless of the date made or created.” Vasudevan Software, Inc. v. IBM Corp., No. C09-05897 RS (HRL), 2010 U.S. Dist. LEXIS 100835, at *19 (N.D. Cal. Sept. 14, 2010). On the same day, another court awarded attorneys’ fees but did not strip the privilege from a litigant who had failed to include privileged communications on a privilege log. The court acknowledged that the plaintiff was “a lawyer with extensive litigation experience,” but noted that he and his wife were proceeding pro se in the matter. Smith v. James C. Hormel School of Va. Inst. of Autism, Civ. A. No. 3:08-cv-00030, 2010 U.S. Dist. LEXIS 95668, at *18 (W.D. Va. Sept. 14, 2010). Also on the same day, another court rejected a non-party’s privilege claim – because it had not logged any withheld documents. The court noted that Rule 45 required a privilege log, and that “[w]ithout producing a privilege log, [the non-party] cannot avail itself of the attorney-client privilege.” Teton Homes Eur. v. Forks RV, Cause No. 1:10-CV-33, 2010 U.S. Dist. LEXIS 96109, at *9 (N.D. Ind. Sept. 14, 2010). The court’s order that the non-party respond to the subpoena might give it a chance to submit a log, and avoid losing the privilege.

Given courts’ varying attitudes toward privilege logs, lawyers must familiarize themselves with the pertinent court’s rules and precedent.