Tuesday, March 27, 2012

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

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:

1. As to log entries that do not contain author and recipient information, privilege was waived.
2. As to communications received by ten or more non-attorneys, the entries did not demonstrate that the non-attorneys had a “need to know” the information, and privilege was waived.
3. As to communications by non-attorneys that reflect legal advice, these documents are not privileged, since defendant did not “establish that these are communications from or to an attorney or that they are communications made at the direction of an attorney.”
4. As to entries missing date information or failing to assert privilege type, those are mere “minor deficienc[ies]” that do not prevent the opponent from attacking the privilege claim, so privilege was not waived.
5. The court also held that knowingly producing documents and later deciding they are privileged does not constitute “inadvertent” disclosure, and therefore, those documents cannot be clawed back; privilege has been waived for those documents.

The ePlus case should serve as a warning to those who think they can cut corners when creating privilege logs. While minimizing human involvement in privilege log creation and leaving fields blank may save you time and perhaps money, those same actions may waive privilege and make the whole privilege log exercise (even when shortened) superfluous. Defendants Lawson Software learned this the hard way. I hope that others will learn from their mistake; at the end of the day, the dollars saved by using a metadata log, or skimping on quality control of a human created log, simply are not worth the risk of waiving privilege and perhaps exposing the very core of your case.

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