Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.
In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017), the court acknowledged that defendant had made privilege log mistakes and withheld some unprotected documents. But the court refused plaintiff’s request for a Special Master’s appointment – noting that defendant’s over-designation was not “a systemic problem,” and that “it appears to the Court that this is simply the type of human error that will necessarily occur when a large document review and production is undertaken.” Id. at *15. The court’s review of some withheld documents also provided a helpful hint about how lawyers and their corporate clients can maximize their chance of winning privilege fights. The court held that an email seeking “‘initial reactions'” to what was likely an advertisement was not privileged, although a lawyer received a copy. Id. at *7 (internal citation omitted). The court noted that the email “does not request legal advice from [the lawyer] or discuss any legal issues.” Id.
Some courts’ refreshingly realistic approach to privilege log errors should encourage corporate defendants. But those defendants should train their employees seeking legal advice to explicitly request it in communications – because even tolerant courts often protect only those documents which demonstrate their primarily legal purpose on their face.