Courts Disagree About Privilege Log Requirements: Part II

May 8, 2024

Last week’s Privilege Point described one court’s incredible requirement that litigants identify everyone who learned of a withheld document’s content — even if they were not shown as a recipient.

A few courts have dealt with a more basic issue. Most courts’ log requirements on their face do not exclude documents created after the litigation began — but such a logging requirement seems preposterously broad. In Rayome v. ABT Electronics, No. 21 C 2639, 2024 U.S. Dist. LEXIS 61262 (N.D. Ill. Apr. 3, 2024), the court rejected plaintiff’s motion to require defendant’s privilege log to include communications after the litigation began, citing opinions from courts around the country taking this common sense view.

Perhaps litigants quietly ignore the literal reach of the pertinent court’s log requirement — with “mutually assured destruction” deterring either side from raising the issue. In Rayome, the court pointedly warned that “[i]f the plaintiff really wants a privilege log from the defendant for all communications after the plaintiff’s attorney contacted defendant’s counsel, plaintiff has a lot more work to do on his own privilege log.” Id. at *14.