Remember Courts’ Privilege-Related Local Rules

August 8, 2018

Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the process under which those courts address privilege and work product issues.

In Scheller v. Williams Companies, Inc., Case No. CIV-17-632-M, 2018 U.S. Dist. LEXIS 96880, at *12 (W.D. Okla. June 1, 2018), the court explained that it was “unable to rule on any claims of privilege at this time” – because the parties had conducted their mandatory “meet and confer” discussion “prior to the production of [the pertinent party’s] privilege log.” The court therefore “order[ed] the parties to meet and confer regarding the documents in dispute on the privilege log,” after which the court would deal with privilege claims. Id. Several weeks later, the court in Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772, at *9 (S.D.W. Va. June 21, 2018), noted that its “local rule requires motions to compel [privileged documents, among other things] to be brought within thirty days after discovery answers are due.” But the court relieved the plaintiff of that deadline – noting that defendant’s amended privilege log “effectively restarted the thirty-day clock.” Id.

Fortunately, corporations’ local counsel normally will be aware of such local rules and the frequently important local “lore” about their courts’ privilege assertion and challenge process.