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Co-authored by: <a href="http://www.bakerlaw.com/karinscholzjenson/">Karin Scholz Jenson</a>


A recent decision from Judge Facciola of the District Court for the District of Columbia lambasted a party’s unspecific, boilerplate privilege log and directed the party to make “specific and clear claims of privilege.”  <a href="https://discoveryadvocate.bakerhostetlerblogs.com/wp-content/uploads/sites/12/2012/11/20120926-Memo-Opinion.pdf">See Chevron Corp. v. The Weinberg Group (No. 1:11-mc-409, D.D.C.)</a>.   In Chevron, the Petitioner challenged over 9,000 entries on Respondent’s “mechanically produced boilerplate privilege log.”  

Following our preferred analytical <a href="http://www.discoveryadvocate.com/2012/10/18/advocating-proportionality-start-with-the-rules/">framework</a>, Judge Facciola starts with the Rules, explaining that Rule 26(b)(5)(A) “requires that a party that claims privilege as to information must expressly make the claim and ‘describe the nature of the documents not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.’”   

In rejecting a majority of the privilege claims, Judge Facciola emphasized the importance of proportionality (see this blog’s post on proportionality <a href="http://www.discoveryadvocate.com/2012/10/18/advocating-proportionality-start-with-the-rules/">here</a> and <a href="http://www.discoveryadvocate.com/2012/10/23/advocating-cooperation-and-proportionality-study-the-case-law/">here</a>) and provided guidance to those of us preparing privilege logs “in the era of big data.”   He warned of the risks in having a machine create the description of the supposedly privileged document, noting that a machine will not evaluate the “actual, specific contents of that particular document,” but instead will repeat the same boilerplate description to create a privilege log “as expensive to produce as it is useless.”  In particular, Judge Facciola points out the frequent – and improper – assertion of privilege for every communication between a client and a lawyer.  The lynchpin of a privilege claim is that the communication is (1) intended to be confidential, and (2) sought legal advice.  Judge Facciola rejected the Respondent’s boilerplate description of “attorney-client communication” where there is no indication in the log of why the document is privileged.

Judge  Facciola ordered the Respondent to produce a majority of the entries on its log and “made clear” that he “expects specific and clear claims of privilege as to each redaction made.  I will hold counsel to their 26(g) obligations ruthlessly, and, at a minimum, hold that the privilege is waived whenever the obligations I am imposing are disobeyed.” 

This is not the first time Judge Facciola has addressed privilege logs in our increasingly electronic world. He teamed up with Jonathan Redgrave for a primer on privilege for the <a href="http://www.fclr.org/fclr/articles/html/2009/facciolaredgrave.pdf">Federal Courts Law Review</a>.

It’s an evolving body of law.  In June, the New York State bar issued a <a href="http://www.nysba.org/AM/Template.cfm?Section=Home&amp;ContentID=69260&amp;Template=/CM/ContentDisplay.cfm">report</a> that included guidelines for creating a privilege log.  In addition, the FTC recently revamped its rule on privilege logs.  See FTC Rule 2.11(A).  Stay tuned to this blog for updates.

Judge Warns: Avoid Mechanically Produced Boilerplate Privilege Logs