Privilege Waived: Insufficient Privilege Log Entries Doom Defendant’s Privilege Claims

Blog Post submitted by Brandon D. Hollinder (Falcon Discovery)

Occasionally I run into clients or an opposing party who will attempt to use a metadata privilege log. And although this approach may save money (but even that point is debatable), I always advise against using them largely because, any such log will invariably be overbroad, inaccurate, incomplete, and potentially cause your opponent and the court to lose trust that you are being honest and straight forward with them. Most importantly, as the recent case ePlus, Inc. v. Lawson Software, Inc., No. 3:09cv620 (E.D. Va) makes clear, you risk waiving privilege.

Metadata privilege logs are created and populated using the metadata available within them, sometimes with little or no human input or modification. The results vary from case to case and even document to document. In some instances, a document may not contain data for some or all fields, or it may contain inaccurate or even non-intelligible information. As a result, the deliverable privilege log may have blank fields or incorrect data.

In ePlus, the Court analyzed several privilege log entries to determine if the defendant had waived privilege as a result of the entry itself. Basing its argument in part on Federal Rules of Civil Procedure Rule 26(b)(5) that a party asserting privilege must “’describe the nature of [privileged] documents, communications, or tangible things . . . and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim[]’” the Court held as follows:

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Source: eDiscovery News
By: Brandon Hollinder