Some courts require litigants withholding protected documents to provide evidentiary support for the withholding along with their privilege log. That can create an enormous burden for companies.
In Go v. Rockefeller University, Nos. 04 Civ. 4008 & 06 Civ. 1825 (JSR)(HBP), 2012 U.S. Dist. LEXIS 32116 (S.D.N.Y. Mar. 9, 2012), Judge Pittman noted that the withholding party is required to prepare a privilege log. The court further held that “the withholding party then has to submit evidence” only “[i]f the assertions of privilege or workâproduct protection are challenged and the dispute cannot be resolved informally.” Id. at *22. The court explained that this process “saves the Court and the parties from having to address any elements of a privilege or protection that are not in dispute.” Id. at *22-23.
Not all courts follow this common sense approach, but it is the most logical process.