Another Court Imposes a Remarkable Burden on a Corporate Litigant

September 28, 2011

Although the Federal Rules of Civil Procedure do not require a privilege log, most courts either themselves require or expect a litigant to log withheld documents. These courts require obvious data such as date, author, recipient, subject matter, basis of the protection, etc.

However, some courts require far more. In Dollar Tree Stores, Inc. v. Toyama Partners LLC, No. CV 10-0325 SI (NJV), 2011 U.S. Dist. LEXIS 81221, at *11 (N.D. Cal. July 26, 2011) (emphasis added), the court ordered plaintiff Dollar Tree “to supplement its privilege log” with another category of data – “adding one column indicating whether any other persons and/or entities were furnished with the document or informed of its substance, and if so, the names of those persons and/or entities.” It is not difficult to imagine the burden a corporation would face trying to determine what “persons and/or entities” were “informed of [the] substance” of a privileged document. Id.

Corporate litigants should check on the pertinent court’s log rules, and be prepared to challenge any onerous requirements.