When Must a Producing Party Provide Evidentiary Support for Withheld Documents?

July 6, 2011

Most courts follow a common-sense approach which requires a party withholding documents to provide evidentiary support for the privilege only after the adversary identifies which documents it seeks from the privilege log. Any other approach would require enormous time and expense by the producing party to support privilege claims that the adversary might never challenge.

However, some courts are more demanding. In Schmitz v. Davis, Case No. 10-4011-RDR, 2011 U.S. Dist. LEXIS 45936, at *27 (D. Kan. Apr. 28, 2011), the court warned that “the objecting party has the burden to establish the existence of the privilege or immunity prior to the time the Court is asked to determine its sufficiency and applicability.” The court added that a party’s failure to do so “is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made.” Id. at *27-28. Despite this harsh language, the court granted defendant “a second opportunity to make the required showing.” Id. at *30.

Although this court’s bark seems worse than its bite, litigants should always check the pertinent court’s approach to this issue, and hope that the court takes the common-sense view.