Courts Deal with Litigants’ Tardy or Inadequate Privilege Logs

June 1, 2016

Courts frequently deal with litigants’ tardy or inadequate privilege logs. Among other things, they must decide the standard of review for a magistrate judge’s initial determination; who has jurisdiction to impose sanctions; and the obvious issue of a late or inadequate log’s implications. Three decisions decided in the same month highlight these issues.

In United States SEC v. Commonwealth Advisors, Inc., the court extensively analyzed the proper standard for reviewing a magistrate judge’s decision that a litigant waived its privilege protection by including “factually incorrect entries” in an amended log (following the magistrate judge’s conclusion that the first log was inadequate). Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4 (M.D. La. Apr. 6, 2016). The court applied a “clearly erroneous” standard in upholding the magistrate judge’s harsh sanction. Id. at *6. A few weeks later, in NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016), the court first held that an administrative law judge lacked the power to sanction a litigant’s tardy log by finding a waiver — but then itself found that the defendant waived its privilege by failing to log withheld documents for nearly a year. Three days after that, the court in Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. Apr. 28, 2016), followed the more generous approach many courts take — finding a litigant’s logs inadequate, but giving it a second chance.

The SEC v. Commonwealth Advisors court recognized that “[d]iscovery has become the preeminent battleground in modern litigation, perhaps eclipsing the rare trial.” 2016 U.S. Dist. LEXIS 46438, at *2 n.1. That battleground often includes skirmishes over privilege logs’ timing and adequacy.