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.” See Chevron Corp. v. The Weinberg Group (No. 1:11-mc-409, D.D.C.). This is not the first time Judge Facciola has addressed privilege logs in our increasingly electronic world. See Facciola-Redgrave Framework Article (need non-Nixon Peabody link). In Chevron, the Petitioner challenged over 9,000 entries on Respondent’s “mechanically produced boilerplate privilege log.”
Following our preferred analytical framework, 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 here and here) provided a significant amount of 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 supposed privileged document, noting that a machine will not evaluate the “actual, specific contents of that particular document,” but instead repeats the same boilerplate description to create a privilege long “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 “attorney-client communication” where there is no indication in the log of why the document was intended to be confidential.
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 an evolving body of law. Within the past six months the New York State bar has issued a report issuing 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.