June 2007
Do You Need a Privilege Log for Your Privilege Log?
By Matthew Hundley and Denis P. Riva, Jr.*
A. Introduction
In most civil lawsuits, especially those involving large corporations, the parties are required to exchange a list of documents withheld from discovery based on claims of privilege (i.e., attorney-client communications, trade secret, etc.). These “privilege logs” can encompass thousands of entries, and take a substantial amount of time and effort to compile. In the digital era with corporations whose employees number in the thousands, inter-corporate communication often involves BlackBerry® and other mobile devices, e-mail, document management systems, and other types of electronic communication. In this “wired” age, privilege review is rarely accomplished by a single attorney rummaging through a box of documents. It most often entails the combined effort of numerous attorneys over a significant length of time, and can occur at numerous, different locations. This necessitates constant communication and coordination among the participating attorneys.
In addition to the countless other issues courts have been forced to address due to the technological explosion in the last ten to fifteen years, courts must now determine whether internal communications made during the collection of documents and the creation of a privilege log, are required to be entered on that log. While few courts have yet to address this issue, the courts in Florida, Kansas, Oklahoma, and Connecticut have attempted to resolve it in one manner or another.
As an example, Intel Corporation employs over 98,000 individuals worldwide, each with access to a networked PC. Bruce Sewell, Intel’s senior vice president and general counsel, recently referred to a search of “17 million documents, most of them stored electronically[,]” resulting from discovery in a case in which Intel was involved. Jay Akasie, Corporations Spend to Avoid Litigation in Paperless World, New York Sun, March 15, 2007, available at http://www.nysun.com/article/50505.
B. General Requirements
The law developing in Florida provides a useful example. Pursuant to the Florida Rules of Civil Procedure § 1.280(b)(5), a privilege log must be submitted “[w]hen a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material.” In preparing the log, “the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable others parties to assess the applicability of the privilege or protection.” Id.
As the court in TIG Insurance Corporation v. Johnson found, there are no Florida state cases describing the “precise details of what a privilege log should include.” 799 So. 2d 339, 340-41 (Fla. 4th DCA 2001). The court observed that:
[T]he Southern District of Florida has supplemented federal rule 26(B)(5) with Local Rule 26.1(G)(3)(b), which provides in part: Where a claim of privilege is asserted in objecting to any interrogatory or document demand, or sub-part thereof, and an answer is not provided on the basis of such assertion: (i) The attorney asserting the privilege shall in the objection to the interrogatory or document demand, or sub-part thereof, identify the nature of the privilege (including work product) which is being claimed and if the privilege is being asserted in connection with a claim or defense governed by state law, indicate the state's privilege rule being invoked; and (ii) The following information shall be provided in the objection, unless divulgence of such information would cause disclosure of the allegedly privileged information: (A) For documents: (1) the type of document; (2) general subject matter of the document; (3) the date of the document; (4) such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author of the document, the addressee of the document, and, where not apparent, the relationship of the author and addressee to each other. . . .
Id. at 341. Although the rule seems to set out the requirements for what a privilege log must include, the only Florida state case to describe the minimum requirements for a privilege log is Bankers Security Insurance v. Symons, 889 So. 2d 93 (Fla. 5th DCA 2004). Aside from identification of each document, the privilege log, at a minimum, should contain sender, recipients, title or type, date and subject matter. Id. at 97. A privilege log should enable other parties to assess the applicability of the claimed privilege or protection.
Other state and federal courts have identified specific information that must be included in a privilege log. In Kansas, the federal courts have required a privilege log to include: (1) a description of the document explaining whether the document is a memorandum, letter, e-mail, etc.; (2) the date upon which the document was prepared; (3) the date of the document if different from the date the document was prepared; (4) the identity of the person who prepared the document; (5) the identity of the person(s) for whom the document was created, including whether the document was created under the supervision of an attorney; (6) the purpose of preparing the document; (7) the number of pages of the document; (8) the party’s basis for withholding the document; and (9) any other pertinent information necessary to establish the elements of each asserted privilege. In Re: Universal Service Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 673 (D. Kan. 2005).
C. Materials Generated in Preparing the Privilege Log
Generally courts that have addressed the issue have found that a privilege log is not required for communications that occur after the commencement of the action. This would include e-mails and other communications between attorneys in the same firm and between an attorney and his client for the purpose of producing a privilege log.
These courts found that requiring a privilege log to extend to these communications would be a futile act with no benefit to either party. In Nevin v. Palm Beach County School Board for instance, the court refused to require the petitioner to provide a privilege log addressing documents and communication concerning all the findings and opinions of a consulting, but not testifying expert. No. 1D06-4967, 2007 Fla. App. LEXIS 8181, *11-12 (Fla. 1st DCA 2007). The court recognized that not only was this material “undeniably protected by work-product,” but also that “the law does not require a futile or useless act.” Id. The court then concluded that requiring the petitioner to file a privilege log would serve no legitimate purpose. Id.
If internal communications within a law firm, stemming from anticipated or ongoing litigation, are found to be privileged, then the firm should not be required to include these internal communications on a privilege log. In Klein v. FPL Group, Inc. et al., the plaintiffs sought production of “all documents reviewed by the [Special Litigation] Committee or its counsel in litigation, including notes of interviews, and all documents that otherwise formed the basis of conclusions.” No. 02-20170-CIV-GOLD-SIMONTON, 2003 U.S. Dist. LEXIS 19979, *45 (D. Fla. 2003). The court required that the firm provide a privilege log for documents received by the Special Litigation Committee regarding the investigation of executive compensation, if a privilege was asserted. Id. However, the court went further to state the firm was “not required to provide a privilege log with respect to its internal communications, as no showing has been made that would justify the production of this work product.” Id. at *46. This would be analogous to attorneys communicating during the process of reviewing documents and compiling a privilege log. When counsel for a party involved in litigation communicates internally about collecting documents and creating a privilege log, like counsel in Klein, they should not be required to log these communications onto the privilege log they are creating.
Similarly, the local federal court rules in the Southern District of Florida provide that attorneys are not required to maintain a separate privilege log including communications for the purpose of collecting and logging documents onto a privilege log:
This rule requires the preparation of a privilege log with respect to all documents and oral communications withheld on the basis of a claim of privilege or work product protection except the following: written and oral communications between a party and its counsel after commencement of the action and work product material created after commencement of the action."
S.D. Fla. L. R. 26.1(G)(3)(c) (emphasis added). This rule was amended in 2003 based on Northern District of Oklahoma Local Rule 26.4(b), which expressly states that a privilege log does not need to include (1) communications between a party and its counsel after commencement of the action, and (2) work product material created after commencement of the action. S.D. Fla. L.R. 26.1 cmt. (2007). Other courts, including the Eastern District of Okalahoma and the Connecticut Supreme Court, have identical language in their rules.
In jurisdictions where similar rules have not been enacted, the result should nevertheless be the same. The law is well-settled that upon finding that a party failed to file or filed an inadequate privilege log, courts may find the privilege waived. In re Universal Serv. Fund. Tel. Billing Practices Litig. 232 F.R.D. 669, 673 (D. Kan. 2005). However, courts will take into account “minor procedural violations, good faith attempts at compliance, and other such mitigating circumstances” when deciding whether waiver is warranted. Id. at 671-672. Absent a showing of bad faith in preparing the privilege log, courts should not find the privilege waived regarding internal communications, requiring instead only that the log be supplemented. Heavin v. Owens-Corning Fiberglass, No. 02-2573-KHV, 2004 U.S. Dist. LEXIS 2265, *23 (D. Kan. 2004).
D. Conclusion
E-mails and other communications between attorneys within a firm and between attorneys and their clients generated by a document collection clearly fall within the categories of attorney work product or attorney-client privilege. As these categories of communications are expressly excluded from discovery, courts should not require attorneys to enter such communications into a privilege log. That would require an unnecessary, added expense to the already increasing cost of discovery, while not affording the benefit that a privilege log is designed to provide. Moreover, the risk of waiving a privilege under these circumstances seems minimal at best.
The attorneys at Moran Reeves & Conn PC regularly assist corporate clients in managing litigation, including coordinating document collection and production. As a result, they are often called upon to advise clients on protecting privileged communications. Please contact Denis P. Riva, Jr. for further information.
* Denis P. Riva, Jr. is an associate at Moran Reeves & Conn PC. He graduated with honors from the T.C. Williams School of Law at the University of Richmond and received his undergraduate degree from Washington and Lee University and MFA from the University of North Carolina - Chapel Hill. While in law school, Mr. Riva was actively involved in the Student Bar Association Executive Committee, moot court, and several scholarly journals. He is an active member of the Richmond Bar Association Young Lawyers Division. Matt Hundley is a rising 3L at University of Richmond's T.C. Williams School of Law. He is spending this summer as a clerk with Moran Reeves & Conn PC. He graduated from Radford University in 2004 with degrees in History and Criminal Justice. After law school Mr. Hundley plans on pursuing a career in litigation with an emphasis on products liability and how technology is shaping that litigation.