Can a Litigant Lose Privilege Protection by Not Identifying Recipients of Privileged Documents on Its Privilege Log?

May 25, 2011

Privilege disputes represent a unique process, in which an adversary challenges a litigant’s withholding of documents without knowing much about those documents. Adversaries generally must point to a litigant’s log of withheld documents when determining which privilege claims to challenge.

Some courts do not give much slack to litigants withholding documents if their logs are incomplete. In Hillsdale Environmental Loss Prevention, Inc. v. United States Army Corps of Engineers, Civ. A. Nos. 10-2008- & -2068-CM-DJW, 2011 U.S. Dist. LEXIS 30376 (D. Kan. Mar. 23, 2011), the court examined the government’s privilege log description of withheld documents. In addition to requiring “that each e-mail in a thread or strand be listed on the privilege log” (which tends to be the minority position), the court rejected the government’s privilege claim for several e-mails which were sent to someone named Mark Frazier. Id. at *18. Because the government had not identified Frazier on its log or in its briefing, the court concluded that “it is unknown who Mr. Frazier is and what relationship, if any, he has with” the government or the government’s lawyer. Id. at *14. Thus, “the [government’s] failure to identify the recipient Mark Frazier defeats a finding of confidentiality.” Id. at *19. The court therefore rejected the government’s privilege claim and ordered it to produce the documents which had been sent to Mark Frazier.

Most courts would give litigants a second chance to identify recipients who are not adequately described on a log. However, companies and their lawyers should be familiar with the pertinent court’s attitude toward issues like this.