Challenging an Adversary’s Entire Privilege Log

July 1, 2015

Unless an adversary’s entire log clearly falls below the required specificity standard, litigants generally must object to specific log entries rather than challenge the whole log.

In United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 67026 (M.D. La. May 22, 2015), the federal government challenged defendant Louisiana state agency’s entire 2,302‑page log. The court disagreed with the federal government’s position that “each entry in the privilege log is insufficient,” and noted that the federal government had provided only thirteen examples of arguably “‘insufficient descriptions.'” Id. at *6 (internal citation omitted). The court labeled as “an unworkable solution” its review of each individual entry — “as evidenced by the United States not undergoing this analysis.” Id. at *7. Instead, the court ordered the federal government to cite forty specific entries “which are exemplary of the entries it challenges as insufficient.” Id. at *10.

While courts criticize and even sanction lawyers for preparing completely insufficient privilege logs, it is refreshing to see a court reject a blanket challenge to an entire log.