The Consequences of a Bad or Tardy Privilege Log

July 3, 2024

Every court seems to require litigants to log documents they withhold based on privilege or work product claims. Perhaps not surprisingly, hardly any log goes unchallenged by the adversary. Most of these disputes eventually sputter out without any dramatic consequences. But some don’t.

In Bautech USA, Inc. v. Resolve Equipment, Inc., Case No. 23-CV-60703-LEIBOWITZ/STRAUSS, 2024 U.S. Dist. LEXIS 80221 (S.D. Fla. May 2, 2024), defendant sought documents from a third party defendant. That third party defendant filed its privilege log two months late — “on the afternoon of the day the parties’ positions on the dispute were due to the Court.” Id. at *6. Acknowledging that a privilege log lapse should not trigger a privilege waiver “when the opposing party has suffered no prejudice,” the court found that harsh sanction appropriate in this instance. Id. at *7. As the court explained, the third party defendant’s two month delay “has left the parties and the Court little time to resolve an assertion of privilege” as upcoming discovery deadlines loomed. Id. at *7-8.

Courts only rarely enter such harsh waiver orders based on privilege log disputes. But lawyers should check the particular judge’s historic attitude toward such disputes and act scrupulously in log creation when litigating before judges who are unsympathetic to delays.