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Court Finds 2,300 Page Privilege Log Unreasonable

Posted on August 19th, 2015

In United States v. State & La. Dep’t of Health & Hospitals, Case No. 11-470 (July 31, 2015), Defendant provided Plaintiff with a nearly 3,000 page privilege log, prompting Plaintiff to file a Motion to Compel based upon the inadequate descriptions of the items contained therein. In response, Defendant submitted a revised privilege log of 2,302 pages as well as a document containing another list of documents not produced. The two logs contained over 13,000 entries total. The court denied the motion but gave Plaintiff the opportunity to renew the motion, and ordered that if Plaintiff did renew the motion, Defendant must submit the challenged documents to the court for in-camera review. Plaintiff ultimately did renew its motion, focusing on 40 specific entries in the privilege logs and dividing the problem into four distinct issues: (i) communications by and between non-attorneys; (ii) communications suggesting no privilege applies; (iii) communications with vague descriptions; and (iv) communications with underlying factual assertions that appear non-privileged. The Middle District of Louisiana conducted an in-camera review of the actual documents, and determined that Defendant had not met the standard set forth by FRCP 26(b)(5) for withholding documents as privileged, which requires that the proponent of the privilege must not only describe the document itself, but provide a description of the contents of the document and explain the basis of privilege sufficient to enable other parties to assess the claim. The court found that Defendant’s privilege log often failed to provide even basic information like identity and role of the sender and recipient. The court also held that many of the documents did constitute attorney client communications or work product but were simply internal communications. The court granted Plaintiff’s motion to compel production of those documents, but declined to order a complete waiver of all privilege, concluding that the privilege log, while unreasonable, was not submitted in bad faith.   ILS – Plaintiff eDiscovery Experts

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