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PRIV-0001
From:
To:
Subject:
Date:
nora.graziano@akerman.com
RulesCommittee Secretary
Comments On Privilege Log Practice
Friday, June 11, 2021 11:05:25 AM
I think documents by categories while perhaps quicker would not be a suitable format and might
invoke more discovery. Identifying the date/to/from subject is helpful in further discovery and in
preparing a motion to compel allowing the requester to specifically narrow down a date or subject.
Thank you.
Nora J. Graziano
Florida Registered Paralegal
Akerman LLP | 401 East Jackson Street, Suite 1700 | Tampa, FL 33602
D: 813 209 5015 | T: 813 223 7333 | F: 813 223 2837
nora.graziano@akerman.com
CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential, and is intended only for
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PRIV-0002
From:
To:
Cc:
Subject:
Date:
V. F. Liptak
RulesCommittee Secretary
usaeo.victimombudsman@usdoj.gov
Comment on Discovery log rule proposals
Saturday, June 12, 2021 7:38:06 AM
For four decades I held state and federal agency licenses without any grievance (ever). I have never been convicted of
a crime, yet I have been financially raped by private and public attorneys, at will, under the pretext of privilege and most
importantly, absurd and concocted rules promulgated by cohorts in Congress and courts, who, as New Kings, "would
be" absolutely immune for crime, fraud and collusion.
Today, big lies are the norm and we are at a Tipping Point, where truth has no place among lawyers who lie, cheat and
steal without repercussions. Their defense against civil prosecution is that no one should believe a word they said. Yet
Millions followed Mantra of "trial by combat", a Pied Piper of derision causing the US to be skating on thin ice. We
need more true checks, oversight and disclosure ~ not less, as today, nothing is sacred by such wolves (with a
sheepskin).
In my experience as a binding arbitrator for the National Association of Securities Dealers and a litigant in state and
federal courts, I find lawyers will obfuscate and deprive disclosure, even when Brady and its progeny demand otherwise.
They refuse because judges do not hold them accountable, as seen recently with the five-year saga of attempting to cause
disclosure of tax information, when it was needed to help voters know just exactly who they were voting for, or against.
So, the idea of making it easier, by Rule that would invalidate any hope of judicial declarations against such bad
practice, is unwarranted and wrong, at best.
The news is replete with how the Department of Justice has been not just politicized but weaponized, for example, by
refusing to seek sentencing of an admitted felon, falsifying reports to Congress and recently: spying on members (who
were political rivals [to their RICO Enterprise Don] a name not coincidentally reminding of Mafia bosses). In my
experience, they do much worse, at will, with virtually no oversight, so long as lawyers can profit and avoid
consequences.
Federal rules should make Discovery more available and less subject to withholding, often times by global and
unwarranted claims of privilege (with the appearance of acting as both a shield and sword) which is supposed to be
overruled by substance, or at least, it should be.
Sincerely, V. F. Liptak, CFP (retired)
PRIV-0003
From:
To:
Cc:
Subject:
Date:
Attachments:
Markowitz, Sharon
RulesCommittee Secretary
Markowitz, Sharon
Response to Invitation for Comment on Privilege Log Practice
Wednesday, June 16, 2021 11:44:53 AM
Template_ Privilege Log Protocol.DOCX
Rule Committee,
My name is Sharon Markowitz. I am a litigation partner at Stinson LLP in Minneapolis, and I am
writing in response to the Invitation for Comment on Privilege Log Practice.
I think the rules/guidance on privilege logs could be substantially improved in federal (and state)
courts. I find that preparing privilege logs is a lot of work -- both in big-document cases and in
medium-document cases that have a high volume of relevant privileged documents (e.g. indemnity
cases). And I think that the most time-consuming parts of the privilege log do little if anything to help
the opposing party assess the privilege claims.
· I can electronically generate the metadata of each withheld document – including the
To/From/CC info, the date, and the document title –in minutes. This information is useful to
the opposing party in assessing privilege; they can see if a document involves attorneys or
not, if it involves third parties that would waive the privilege, etc.
· But I have to put a lot of work into preparing the narratives for each document. The
narrative will almost always say "communicating legal advice regarding X," but the "X" (the
thing that takes the most time to populate) has no impact on whether the document is
privileged. If it's a communication of legal advice, it's privileged, regardless of subject
matter. So this information does not give the opposing party any information it needs to
assess the privilege.
I think the solution to this problem is to allow parties to produce privilege logs with metadata only
AND allow opposing counsel to ask follow-up questions about specific documents as needed. I have
done this successfully in several cases, and I have attached a sample privilege log protocol that
reflects this approach.
A few notes:
· The metadata-only privilege log will usually alleviate the need to debate whether a party will
only log the most inclusive email in a thread because it is usually easy to generate the
metadata for all emails in the thread.
· I think it is also helpful to agree that redacted documents do not need to be logged if the
To/From/CC, date, and title for such documents are apparent on the face of the redacted
documents. That is reflected in the attached protocol.
· I think the follow-up questions are most likely to relate to documents withheld as work
product (i.e. documents for which there is no lawyer in the To/From/CC line). These are
·
helpful conversations and may involve much more than producing a "narrative."
I don't think that filling in the Privilege Type is helpful (generally, if a lawyer is not in the
To/From/CC line, the doc is probably being withheld as work product), but I don't feel very
strongly about its omission.
I do not think that categorical privilege logs are the answer. Categorical logs require me to do all the
work of identifying the subject matter of the documents (irrelevant to whether the doc is privileged)
and do not communicate to the opposing party who was part of the communication (highly relevant
to whether the doc is privileged) or the date of the communication (sometimes relevant to whether
the doc is privileged – particularly whether it is subject to work-product protection).
Thank you for your attention to this matter. I think this is an area where we can significantly reduce
inefficiencies in litigation.
Please let me know if you have any questions.
Sharon
Sharon R. Markowitz
Partner
STINSON LLP
50 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Direct: 612.335.1974 \ Bio
Assistant: Jan Hungerford \ 612.335.1935 \ jan.hungerford@stinson.com
STINSON.COM
This communication (including any attachments) is from a law firm and may contain confidential and/or privileged
information. If it has been sent to you in error, please contact the sender for instructions concerning return or
destruction, and do not use or disclose the contents to others.
The parties in the above-captioned action have stipulated and agreed to the following terms
regarding the content and format of their privilege logs:
1.
General Provisions. The parties have agreed to exchange privilege logs in which
each document will be logged individually utilizing certain metadata fields that can be
electronically generated.
2.
Content and Format of Privilege Logs. The Parties shall serve privilege logs in
the format shown below.
a.
Documents to Be Logged. The parties’ privilege logs will consist of every
individual responsive document which (1) has been withheld as privileged in full or (2) has been
redacted in such a manner that the information that would appear on a privilege log does not appear
on the face of the document. The parties agree that responsive non-privileged family members of
privileged documents will be produced and therefore need not be logged.
b.
Document Fields. The parties’ privilege logs will list the following fields
for each logged document, as applicable: Date; From or Author; To; CC; File Name or Subject
Line; [OPTIONAL: Privilege Type]; and (if applicable) Bates Number. For each logged document,
the parties may populate these fields using the metadata associated with the document or, if the
document does not have the necessary metadata, manually, using other information reasonably
available to the party.
The parties may in good faith redact any portion of the File Name or Subject that reveals
privileged information.
For avoidance of doubt, the parties shall serve privilege logs in the substantially the same
format shown below.
CORE/9991000.2179/167596750.1
1
Priv
Log
ID
1
Date
From/
Author
To
CC
File Name/
Subject Line
1/1/2004
[Full
name
and/or
address]
[Full
name]
##
2/2/2005
[Full
name
and/or
address]
[Full
name]
xxxxxx.
msg
2
[Full
name
and/or
address]
[Full
name]
Memo.
doc
##
3.
OPTIONAL:
Privilege Type
Bates
No.
List of Attorneys. Along with each privilege log, the party serving the log will
provide the other party with a list of attorneys referenced in the log, including the attorney’s name,
firm or company, and title.
4.
Reservation of Rights.
The parties may, in good faith, request a privilege
description or explanation for any document listed on a privilege log that (a) does not contain an
attorney in the from/author, to, or cc fields or (b) has been transmitted to or received by a third
party. The parties reserve the right to challenge individual privilege assertions.
5.
Documents Not Required to Be Logged. The parties agree that neither party shall
be required to log communications between the party and counsel or attorney work product in this
litigation dated on or after the date this action was filed.
6.
Privilege Log Schedule. Privilege logs shall be served on the following schedule:
a.
XXXX
CORE/9991000.2179/167596750.1
2
7.
Production of Withheld Documents. If a party disputes the withholding of certain
documents based on privilege and the parties agree to or the court orders production of such
documents, the parties shall meet and confer in good faith regarding the extension of relevant
discovery deadlines. If the parties do not agree to an extension, each party reserves its rights to
raise the issue with the Court.
CORE/9991000.2179/167596750.1
3
PRIV-0004
` EVANS LAW FIRM, INC.
Ingrid M. Evans
Attorney
June 23, 2021
Ingrid M. Evans (CA, DC, NY)
VIA E-MAIL: RulesCommittee_Secretary@ao.uscourts.gov
MEMBERS OF THE JUDICIAL CONFERENCE
ADVISORY COMMITTEE ON CIVIL RULES
Re: Fed. R. Civ. P. 26(b)(5)(A) – Privilege Logs
To the Members of the Advisory Committee on Civil Rules:
I am the founder of Evans Law Firm, Inc., a plaintiff’s law firm representing individuals and
class action representatives in all four federal district courts in California and as co-counsel in
U.S. District Courts throughout the U.S. My federal court practice includes federal question
cases, as in qui tam actions brought under the False Claims Act, 31 U.S.C. § 3729 et seq. and
diversity cases.
I write this letter to urge the members of the Judicial Conference Advisory Committee on
Civil Rules to leave Fed. R. Civ. P. 26(b)(5)(A) (“the Rule”) unchanged. As it currently stands,
the Rule forces parties claiming privilege to disclose sufficient information regarding the
withheld information or documents to allow the propounding party in turn to determine whether
the asserted privilege should be challenged. In many of the federal cases I have litigated, the
Rule has performed an important function in protecting against the unjustified assertion of
privilege by defendants attempting to avoid full disclosure of information and documents.
Specifically, many of the diversity cases I litigate involve consumer insurance contracts such
as annuities and universal life insurance. An important part of discovery is often the
development of those contracts by the carrier over time. Contract development typically
includes input from compliance personnel who are not attorneys. Despite involvement by nonattorneys in the process, I have been forced to litigate (successfully) against carriers who
withheld such information on the basis of attorney-client privilege. Had the carrier defendants
not been forced to provide the information required by Fed. R. Civ. P. 26(b)(5)(A) I would not
have had the information I need to challenge the unfounded assertion of privilege.
EVANS LAW FIRM, INCORPORATED
MAILING ADDRESS 3053 Fillmore Street #236, SAN FRANCISCO, CALIFORNIA 94123
TELEPHONE 415-441-8669 TOLL FREE TELEPHONE 888-50EVANS (888-503-8267) TOLL FREE FAX 888-891-4906
EMAIL Ingrid@Evanslaw.com WEBSITE www.evanslaw.com
` EVANS LAW FIRM, INC.
A detailed privilege log is indispensable to discovery and adequate trial preparation. I have
encountered defendants who sought to withhold documents on the basis of privilege which were
not at all privileged. If the responding party had not been required by the Rule to disclose in a
log the true circumstances of the documents (authors, recipients, subject matter, etc.) I would
have been unable to compel disclosure of a document that should never have been withheld.
Thus, I cannot understate the importance of the Rule when it comes to discovery. A single
document may be critical to a plaintiff’s case so a document-by-document disclosure of the
purported grounds of privilege is essential. Any change that would, for example, allow
withholding parties to describe “categories” of documents would be too lax and vague to permit
a propounding party to zero in on what is necessary to support claims or prepare for trial. The
ability of the propounding party to “assess the claim” of privilege on a document-by-document
basis as the current Rule allows is essential.
In the interest of full and truthful disclosure in the federal civil litigation, I urge the Advisory
Committee to leave the Rule unchanged. As it is written, Fed. R. Civ. P. 26(b)(5)(A) is an
important tool in any litigant’s arsenal to compel full and honest pre-trial discovery.
Sincerely,
Ingrid M. Evans
EVANS LAW FIRM, INCORPORATED
MAILING ADDRESS 3053 Fillmore Street #236, SAN FRANCISCO, CALIFORNIA 94123
TELEPHONE 415-441-8669 TOLL FREE TELEPHONE 888-50EVANS (888-503-8267) TOLL FREE FAX 888-891-4906
EMAIL Ingrid@Evanslaw.com WEBSITE www.evanslaw.com
PRIV-0005
From:
To:
Cc:
Subject:
Date:
Baxter-Kauf, Kate M.
RulesCommittee Secretary
Riebel, Karen Hanson
Privilege Log Commentary
Friday, June 25, 2021 6:32:01 PM
Good afternoon,
I submit these comments in response to the Invitation for Comment on Privilege Log Practice. My
name is Kate Baxter-Kauf, and I’m a partner at Lockridge Grindal Nauen in Minneapolis, which is a
midsize litigation firm. My background is in complex civil litigation, where I represent plaintiffs and
defendants in complex class actions before state and federal courts. In general, these cases involve
lots of privilege assertions and, often, motion practice on the contours of acceptable privilege. I was
counsel for Plaintiffs in privilege disputes related to the Premera, Yahoo, Capital One, and other data
breach litigation, and published a letter regarding Sedona Conference commentary on privilege in
cybersecurity and privilege disputes (article for context here). I also have represented governmental
entities in data breach and other litigation where privilege is an issue, and have both prepared
extensive document-by-document logs and evaluated them for privilege and protection claims.
In my experience, Rule 26(b)(5) is relatively straightforward and easy to comply with. Most circuits
have a list of information that is presumptively included in order for parties to describe materials
being withheld in a manner that “enable[s] other parties to assess the claim” of privilege or
protection, and most complex cases involve a recognition by all parties that such a list is necessary to
evaluate any claims. In my experience, document-by-document privilege logs are essential to
evaluating privilege and protection claims, and it is nearly impossible to accurately assess claims
without that information. This is because the nature of complex civil practice means that (A) there
are often both inside and outside counsel involved, (B) those inside and outside counsel are often
working in both business and legal capacities, directing multiple entities, third parties and agents,
and working simultaneously on matters that are related to legal and business advice, and (C) the
volume of documents means that there are inevitably mistakes where documents that are not
privileged or protected are withheld inadvertently and end up being produced. Without a
document-by-document privilege log, it is simply not possible to precisely evaluate the privilege or
protection claim being asserted. A revision to Rule 26(b)(5)(A) indicating that a document-bydocument log is not routinely required or that specified categorical log would only exacerbate these
problems by making the parties first fight over whether a document-by-document log was even
required, then whether the log was adequate to allow proper evaluation of the privilege or
protection asserted, then whether the underlying documents were properly withheld. Adding a
layer of additional conflict for the parties in a way that makes it even harder to evaluate privilege or
protection claims is likely to increase the problems faced by litigants in privilege disputes.
It is no doubt true that the result of complex privilege and protection claims under the current rule
regime involves a fair amount of work to establish the privilege claim by the party seeking to
withhold documents or information. This is because the attorney-client privilege and work product
protection are exceptions to the general rule that adverse parties are entitled to evidence that
would support or rebut their claims and defenses. To me, the Discovery Subcommittee, in
evaluating changes to any discovery rule, need evaluate not only the burden to the party who must
produce evidence but also the likelihood that the party seeking the information will be deprived of
relevant evidence because that evidence is inadvertently or otherwise withheld on a mistaken
privilege claim. In my experience, it is mechanisms that attempt to short circuit the plain
requirements of Rule 26(b)(5), and not the act of simply drafting a document-by-document log, that
are most likely to waste judicial resources or become burdensome to the parties or the courts, or to
increase the likelihood of expensive or prolonged disputes. For example, I have worked on cases
where large corporate defendants have produced privilege logs created entirely by computers with
no attorney oversight. These boilerplate attempts at document-by-document privilege almost never
work to allow the party evaluating the privilege claim to fairly assess the claim, because the
descriptions are generic coded verbiage and fields of information that would be easily available on
the face of the document do not make it into the metadata to be captured. In these situations, the
act of even getting a reasonable privilege log has been burdensome to the parties and to the Court.
But categorical privilege logs are often worse, because they simply make the claim of privilege or
protection even more opaque, leading to endless meet and confers about what it even is that is
being withheld. Document-by-document logs that clearly set out the information being withheld
and the privilege or protection claim being asserted are fundamental to evaluating privilege and
protection claims, and my experience in meet and confers bears that out – even before motion
practice ever takes place, when logs are facially deficient and require evaluation and discussion
among the parties, huge swaths of withheld documents are often downgraded and produced, or
produced with much more limited redactions.
We have found that categorical challenges to types of documents after review of a document-bydocument log of documents withheld can be helpful in evaluating privilege claims, and often bring
those types of challenges before courts (such as in the Premera Data breach litigation – orders here
and here). In these cases, we start with a document-by-document log and meet and confers
between the parties regarding the facial deficiencies of logs produced or information needed to
assess privilege claims, and then figure out the types of documents where there are disputes to be
submitted to the court, often with exemplar documents or log entries submitted for evaluation or in
camera review. Case management tools used by courts such as these, rather than rule changes,
seem most likely to encourage reasonable practice by the parties. To the extent that rule changes
would be helpful, I can think of two things that might be helpful. First, District Courts in the District
of Minnesota routinely include privilege logs in their Rule 16 conferences, including requirements to
meet and confer, deadlines for log production, dates to cabin privilege claims after a complaint has
been filed when no injunctive relief is sought, etc. This is often helpful and allows the parties to set
themselves up in advance to understand where disputes might lie and if there are types of
documents likely to be subject to a privilege dispute that can be evaluated categorically (such as in
the case of forensic reports in the linked cases). Second, lots of circuits have rules about
presumptive information that should be included on a log—such as Bates
stamp/author/recipients/copied recipients/date/subject/title/attorney status/file name/type of
communication/basis for privilege—that provides clear direction about the information that should
be included if available. Changes to Rule 26(b)(5)(A) that would codify those requirements for all
privilege logs, assuming they are sufficiently comprehensive to capture all the information needed to
assess the claim, would short-circuit a lot of the facial disputes about whether a log is compliant and
make it much easier to evaluate whether a claim of privilege or protection is properly asserted. Such
a rule might frontload work at the beginning in creating usable document-by-document privilege
logs, but would surely make it clear to all parties what was being withheld and why.
I hope these comments are helpful. I am happy to answer any questions you might have.
Thanks,
Kate
Kate Baxter-Kauf | she/hers | Partner
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue S | Suite 2200 | Minneapolis MN 55401
V: 612-596-4007 | F: 612-339-0981 | www.locklaw.com
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PRIV-0006
From:
To:
Subject:
Date:
Mike Moore
RulesCommittee Secretary
Invitation to comment on Privilege Log Practice
Wednesday, July 14, 2021 12:28:00 PM
Thanks for the opportunity to comment on the subject of the Invitation. I
am a solo practitioner, representing plaintiffs in civil rights cases against,
among others, police, children services agencies, and other state actors.
In the area of civil rights, the plaintiff commences a case at a decided
disadvantage to the defendants. It is the rare case in which the plaintiff’s lawyer
has access to any but documents available through a public records request,
such as detail incident reports, published policies, etc. On the other hand, the
state actor defendants have most all the documents which bear on the claims
made.
In light of this, the defendants are in a position to create delay by, among
other tactics, withholding documents in discovery that bear on the relevant
facts. Indeed, since the Rule does not specify the nature of the information that
must be provided in a privilege log, it is entirely possible that the plaintiff must
litigate how much information must be provided before even addressing the
specifics of the withheld documents.
Without such specifics as the date, author, recipient, and subject matter
of the document, it is virtually impossible for the plaintiff – or the trial court –
to “assess the claim” of privilege.
When a trial court, as just happened in a case I am litigating, approves a
privilege log which provides none of these specifics, the plaintiff has nothing to
work with and no record to bring to the Court of Appeals.
While it may be burdensome for a defendant to specify the information
necessary for the opposition to assess the merit of an objection, it cannot be
undue burden – obviously, defense counsel must go through each document,
exercising due diligence, to determine if that document merits a claim of
privilege.
Any modification of the Rule to allow simple “categories” to be listed in
a privilege log not only will dramatically impact the plaintiff lawyer’s ability to
intelligently argue that the privilege does not apply or has been waived, it will
encourage defense counsel to simply lump documents together without making
the individual determination that sound practice requires.
In short, there should be no modification of the Rule. Trial courts have
authority under current practice to modify the Rule in a specific case that merits
such treatment.
Michael Garth Moore
In Arizona:
4370 North Via Entrada Hermosa
Tucson, Arizona 85718
520-318-0075
In Ohio:
341 South Third Street
Suite 100-204
Columbus, Ohio 43215
Working to restore justice,
one family at a time.
PRIV-0007
From:
To:
Subject:
Date:
Thomas Beck
RulesCommittee Secretary
Privilege Log Rule change?
Wednesday, July 14, 2021 2:40:58 PM
I for one would not be pleased to get a privilege log from the defense that allows generic
descriptions. I have been litigating police misconduct cases for 42 years on the plaintiff's side
and my experience with privilege logs has been that the defense does not use them routinely,
merely objecting on WP or A/C or privacy grounds and the discovery magistrates let them get
away with this practice. The purpose of the log is to help me identify what documents exist,
whether the objections are applicable and whether the document is worthy of chasing down
with a motion to compel. A proper descriptive log is a huge time saver as it is intended to be
when we get them.
To allow a generic "personnel record" description to meet the rule defeats the purpose because
personnel records include details of little value in cases such as mine, and others which are
essential, such as complete investigations into complaints that are actually not privileged.
As noted, my practice as a solo plaintiff's attorney seldom requires me to withhold or even
identify via a privilege log, documents the defense may ask for. The existing rule is a good
one if only the courts would insist that defendants abide by the requirements.
--
Thomas E. Beck
The Beck Law Firm
P.O. Box 101
Los Alamitos, CA 90720
562 795 5835
PRIV-0008
From:
To:
Cc:
Subject:
Date:
Dennis E. Murray, Sr.
RulesCommittee Secretary
Dennis E. Murray, Sr.
Privilege log changes.
Thursday, July 15, 2021 11:29:16 AM
I have been litigating for 58 years and the constant add-on to the required mechanics in order to
properly represent persons who need legal assistance, is and will reduce/eliminate legal counsel
from small firms.
We need to stop adding on complicated “dance steps” or else very few will be left to represent the
extremely large proportion of citizens that from time-to-time need legal representation.
Dennis
Dennis E. Murray, Sr.
dms@murrayandmurray.com
Murray & Murray Co., L.P.A.
111 E. Shoreline Drive
Sandusky, Ohio 44870
Telephone: (419) 624-3000
Facsimile: (419) 624-0707
PRIV-0009
Medical malpractice, wrongful death,
catastrophic injury & insurance law litigation
____________________
Lori M. Bencoe, JD • Cherie L. LaCour, JD • Danielle L. Ceballes, JD
www.bencoelaw.com
SUBMITTED ELECTRONICALLY
July 14, 2021
Judicial Conference Advisory Committee on Civil Rules
Rules Committee Secretary
RE: Comment on Rule 26(b)(5)(A) Privilege Log Practice
Dear Friends:
I have been a lawyer since 1993 and since 2004, my small law firm has litigated mostly claims against
healthcare systems. Much of the work we do is for patients and families harmed or killed by medical and
institutional negligence for conduct including hospital staffing and credentialing/ granting and renewing
privileges to hospital-based healthcare providers. Like most states, New Mexico has a Review
Organization Immunity Act (“ROIA”) that governs disclosure of documents and information maintained
by hospital review organizations in the process of credentialing, granting and renewing privileges to
hospital-based providers. To maintain licensure and eligibility for Medicare, federal regulations require
that hospitals remain licensed and accredited, and govern their medical staff through Bylaws, rules and
regulations delineating processes for credentialing, granting and renewing privileges, conducting ongoing
and focused professional practice evaluations and performing peer review. The substantive law of many
states permits a direct corporate liability claim against a hospital for failing to follow these processes,
generically referred to as “negligent credentialing claims.” New Mexico’s Supreme Court has codified
our cause of action in a Uniform Jury Instruction that states:
9201 Montgomery Blvd. NE Ste. 404 ~ Albuquerque NM 87111 ~ 505-247-8800
505-247-8801 fax ~ 866-921-8800 toll free ~ Lori@bencoelaw.com
Committee on Civil Rules, Secretary
July 15, 2021
RE: Comments on Suggested Privilege Log Practice
Page 2 of 3
UJI Civ., Rule 13-1119B NMRA.
Our firm has brought such claims against hospitals that continued to renew privileges to physicians whose
public records reflect problematic histories with State Medical Board disciplinary actions and prior
malpractice lawsuits, settlements and judgments. We do not assert this cause of action as a matter of
course. When we do, there is usually a history of multiple prior serious legal actions/ complaints and/or
state medical board actions. The question for the jury and the Court in those cases is usually whether or
not the hospital followed the processes set forth in its governing documents for safely credentialing and
granting or renewing privileges or disregarded or even “rubber stamped” the provider’s request for
renewal despite concerning information.
A court or jury tasked with deciding if a hospital was negligent in its credentialing /privileges processes
for an allegedly negligent provider requires a forensic expert review of the hospital’s documents and
information about the provider. New Mexico’s ROIA statute and interpretive case law permit the hospital
to assert ROIA as an immunity but not to hide behind. To this end, the confidentiality of records of a
“review organization” are defined fairly narrowly so as to provide a qualified immunity to only those
documents the hospital proves were “generated exclusively for peer review and no other purpose.” § 419-5 NMSA (Confidentiality of records of review organization). The annotated statute is enclosed as
Exhibit 1. New Mexico’s courts require the party seeking to immunize discovery acquired by a review
organization “to prove that the data or information was generated exclusively for peer review and for no
other purpose, and that opinions were formed exclusively as a result of peer review deliberations [and] [i]f
the evidence was neither generated nor formed exclusively for or as a result of peer review, it shall not be
immune from discovery unless it is shown to be otherwise available by the exercise of reasonable
diligence. Southwest Cmty. Health Servs. v. Smith, 1988-NMSC-035, 107 N.M. 196, 755 P.2d 40.
To effectuate discovery of peer review materials in a credentialing case, New Mexico discovery law
requires a privilege log that contains sufficient specificity to meet this burden. A privilege log that
specifically identifies the contents of documents withheld as purportedly ROIA immune is essential in
order for plaintiffs and the Court to conduct informed discovery motion practice. Without a sufficiently
detailed privilege log that identifies the actual contents the hospital seeks to protect, the patient and the
Court cannot determine if they in fact meet the definition of ROIA as “exclusively generated for peer
review and no other purpose” or as items from other sources, used for other purposes than peer review
that should be compelled produced by the Court. Without a sufficiently detailed privilege log, the Court
cannot determine what items to order and conduct an in camera review of. Additionally, New Mexico’s
ROIA statute and interpretive case law permit a Court to order production of documents that are critical to
the claims and defenses of a case, even if they are properly defined as ROIA (generated exclusively for
peer review). Without a sufficiently detailed privilege log, the Court cannot determine what items to
review in camera for criticality.
Judges are extremely busy with dockets of sometimes thousands of cases. The suggested revisions to the
Rule would relax privilege log requirements so much that it would render them effectively useless to the
litigants or the Court. A party asserting a privilege or immunity such as ROIA has the burden to prove it
and cannot do so by stating only general categories of documents. If adopted, the proposed changes to
Rule 26((B)(5)(A) would effectively give the party asserting a privilege or immunity a pass from meeting
its burden of proving the privilege or immunity it asserts. Moreover, lists of general “categories” of
documents by their nature thwart the very purpose of requiring a privilege log at all. In point of fact, this
9201 Montgomery Blvd. NE Ste. 404 ~ Albuquerque NM 87111 ~ 505-247-8800
505-247-8801 fax ~ 866-921-8800 toll free ~ Lori@bencoelaw.com
Committee on Civil Rules, Secretary
July 15, 2021
RE: Comments on Suggested Privilege Log Practice
Page 3 of 3
is one of the most problematic types of discovery motions patients file in these cases. My firm is
presently engaged in discovery in several cases where we have received privilege logs that list only
general categories of documents and information rather than specifically identifying them. When this
happens, we are unable to sufficiently challenge the privilege or immunity the hospital claims. We are
not able to tell if each document was generated exclusively for peer review (ROIA) or came from another
source (not ROIA). Without time consuming in camera review, Courts are not able to tell, either.
New Mexico’s Court of Appeals has concluded that a party who fails to produce a sufficient privilege log
can be found to have waived its right to assert that privilege or immunity. This makes far more sense than
shifting the burden of proving a privilege or immunity to the Court because the hospital corporation failed
to sufficiently assert what documents exist and why they should remain immune as privileged or immune.
There should be a presumption of good faith by all parties in discovery. But there has to be a way for
parties to be accountable to that. The practice of permitting any party who asserts a privilege to state it
generally and categorically will encourage more discovery abuses by those lawyers and litigants who can
get by with it. Our courts should not ever encourage a rule that permits litigants to obscure or hide
evidence under the categorical assertion that it is secret, privileged or immune. That would be contrary to
the principle of transparency in discovering evidence to support claims and defenses. And lack of
transparency rarely serves the interests of justice under the law. For these reasons, I urge the Committee
to reject the suggested revisions to this Rule regarding Privilege Log Practice. Thank you.
Yours Very Truly
Lori M. Bencoe
Attachment
9201 Montgomery Blvd. NE Ste. 404 ~ Albuquerque NM 87111 ~ 505-247-8800
505-247-8801 fax ~ 866-921-8800 toll free ~ Lori@bencoelaw.com
41-9-5. Confidentiality of records of review organization.
A. Except as provided in Subsection B of this section, all data and information acquired by a
review organization in the exercise of its duties and functions shall be held in confidence and shall
not be disclosed to anyone except to the extent necessary to carry out one or more of the purposes
of the review organization or in a judicial appeal from the action of the review organization. No person
described in Section 41-9-4 NMSA 1978 shall disclose what transpired at a meeting of a review
organization except to the extent necessary to carry out one or more of the purposes of the review
organization, in a judicial appeal from the action of the review organization or when subpoenaed by
the New Mexico medical board. Information, documents or records otherwise available from original
sources shall not be immune from discovery or use in any civil action merely because they were
presented during proceedings of a review organization, nor shall any person who testified before a
review organization or who is a member of a review organization be prevented from testifying as to
matters within the person's knowledge, but a witness cannot be asked about opinions formed by the
witness as a result of the review organization's hearings.
B. Information, documents or records that were not generated exclusively for, but were presented
during, proceedings of a review organization shall be produced to the New Mexico medical board by
the review organization or any other person possessing the information, documents or records in
response to an investigative subpoena issued pursuant to Section 61-6-23 NMSA 1978 and shall be
held in confidence by the New Mexico medical board pursuant to 61-6-34 NMSA 1978. Nothing in
this section shall be construed to permit the New Mexico medical board to issue subpoenas
requesting that any person appear to testify regarding what transpired at a meeting of a review
organization or opinions formed as a result of review organization proceedings.
History: Laws 1979, ch. 169, § 5; 2011, ch. 121, § 1.
ANNOTATIONS
The 2011 amendment, effective June 17, 2011, required health care review organizations to
respond to subpoenas issued by the medical board for non-testimonial information, documents and
records presented at proceedings of the organization.
Implied private right of action. — In determining whether a statute implies a private right of
action, three factors to consider are (1) whether the statute was enacted for the special benefit of a
class of which the plaintiff is a member, (2) whether there is any indication of legislative intent,
explicit or implicit, to create or deny a private remedy, and (3) whether a private remedy would
frustrate or assist the underlying purpose of the legislative scheme. Yedidag v. Roswell Clinic Corp.,
2015-NMSC-012, aff’g 2013-NMCA-096, 314 P.3d 243.
Where plaintiff, an employee-physician of employer medical center (employer), participated in a
peer review of another employee-physician of employer, employer utilized confidential peer review
information to justify terminating plaintiff; this section of the Review Organization Immunity Act
(ROIA) [41-9-1 to 41-9-7 NMSA 1978] provided plaintiff with a private right of action because (1)
this section provides a blanket confidentiality provision for peer review proceedings, and therefore
plaintiff, as a peer reviewer, is a member of the protected class, (2) the legislature intended to
create an implied cause of action because violating the statute is a wrongful act, and where the
violation results in damage to a member of the protected class, the right to recover damages is
implied, and (3) an implied cause of action furthers the purpose of the statute because upholding
the peer review integrity under ROIA is best accomplished with an implied civil cause of action for
violations of peer review confidentiality. Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, aff’g
2013-NMCA-096, 314 P.3d 243.
Mandatory rule of law. — By its plain language, this section is a mandatory rule of law, stating that
no person shall disclose what transpired at a meeting of a review organization except for the
purposes listed in the statute; as a mandatory rule of law, the provision is incorporated into
physician-reviewer employment contracts and parties are precluded from contractually avoiding
application of the rule. Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, aff’g 2013-NMCA-096,
314 P.3d 243.
Where plaintiff, an employee-physician of employer medical center (employer), participated in a
peer review of another employee-physician of employer, employer utilized confidential peer review
information to justify terminating plaintiff; this section provided a basis to imply, as a matter of law,
that there would not be any adverse consequences to plaintiff’s employment resulting from his
actions during the peer review process. Yedidag v. Roswell Clinic Corp., 2015-NMSC-012, aff’g
2013-NMCA-096, 314 P.3d 243.
Private right of action. — A member of a peer review organization can bring a private cause of
action for an alleged violation of the confidentiality provisions of 41-9-5 NMSA 1978. Yedidag v.
Roswell Clinic Corp., 2013-NMCA-096, cert. granted, 2013-NMCERT-009.
Where plaintiff, who was employed as a surgeon by defendant, attended a peer review meeting
together with other physicians and members of defendant’s administration and management staff;
during the meeting, plaintiff participated in the review of a colleague’s surgical care and treatment of
a patient; plaintiff questioned the colleague about the surgical treatment of the patient and the
events that led to the patient’s death; after the meeting ended, two members of defendant’s staff
who were present at the meeting reported to members of defendant’s administration and
management staff who where not present at the meeting that plaintiff had engaged in
unprofessional and aggressive behavior at the meeting by verbally attacking the colleague whose
case was under review and engaging in disruptive behavior; and two days after the meeting,
defendant terminated plaintiff for unprofessional behavior and language and disruptive behavior,
plaintiff had a private cause of action against defendant for the alleged violation of 41-9-5 NMSA
1978. Yedidag v. Roswell Clinic Corp., 2013-NMCA-096, cert. granted, 2013-NMCERT-009.
Trial court is required to make a finding on exclusivity. — Where the defendant showed that
credentialing and quality management documents were acquired by a review organization in the
exercise of its duties and functions, and the district court, following an in camera review of the
documents, found that the documents were "innocuous and routine", the court’s finding was
insufficient to support the court’s determination that the defendant had failed to satisfy its burden of
proof that the documents were generated exclusively for peer review and for no other purpose.
Chavez v. Lovelace Sandia Health Sys., 2008-NMCA-104, 144 N.M. 578, 189 P.3d 711.
Criticality not shown. — Where credentialing and quality management documents that were
acquired by a review organization in the exercise of its duties and functions were not harmful to the
defendant on the issue of liability and contained information that the plaintiff could obtain from
discoverable hospital and personnel records, the plaintiff failed to satisfy his burden of showing that
the documents were critical to his cause of action. Chavez v. Lovelace Sandia Health Sys., 2008NMCA-104, 144 N.M. 578, 189 P.3d 711.
Immunity from discovery. — Where a party seeks to immunize from discovery data or information
acquired by a review organization in the exercise of its duties and functions, and opinions formed
as a result of the review organization's hearings, the burden rests upon that party to prove that the
data or information was generated exclusively for peer review and for no other purpose, and that
opinions were formed exclusively as a result of peer review deliberations. If the evidence was
neither generated nor formed exclusively for or as a result of peer review, it shall not be immune
from discovery unless it is shown to be otherwise available by the exercise of reasonable diligence.
Southwest Cmty. Health Servs. v. Smith, 1988-NMSC-035, 107 N.M. 196, 755 P.2d 40.
Under the doctrine of "self-critical analysis" immunity, as contemplated by this section, records
relating to a morbidity and mortality review are confidential and not subject to discovery in a
medical malpractice action. Weekoty v. United States, 30 F. Supp. 2d 1343 (D.N.M. 1998).
Production of confidential information. — Where information is ruled confidential and the party
seeking access satisfies the trial court that the information is critical to the cause of action or
defense, the trial court shall compel production of such evidence. Southwest Cmty. Health Servs. v.
Smith, 1988-NMSC-035, 107 N.M. 196, 755 P.2d 40.
This section does not create an evidentiary privilege in civil litigation, and thus does not come
into direct conflict with Rule 11-501 NMRA. Southwest Cmty. Health Servs. v. Smith, 1988-NMSC035, 107 N.M. 196, 755 P.2d 40.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of voluntary disclosure of privileged
proceedings of hospital medical review or doctor evaluation processes, 60 A.L.R.4th 1273.
Scope and extent of protection from disclosure of medical peer review proceedings relating to claim
in medical malpractice action, 69 A.L.R.5th 559.
PRIV-0010
From:
To:
Subject:
Date:
D.J. Young, III
RulesCommittee Secretary
Comment on Rule 26(b)(5)(A) - Privilege Logs
Friday, July 16, 2021 9:21:00 AM
Dear Judicial Conference Advisory Committee on Civil Rules,
I am an attorney representing the interests of injured and deceased plaintiffs in cases against
interstate trucking companies. It is my experience that these companies lack internal and external
sources of accountability. It is my experience that their insurance carriers benefit from this lack of
accountability. Being singularly profit-motivated (as they are required to be by state corporation
laws), for them there is nothing morally wrong with violating discovery rules and hiding documents.
Indeed, if hiding documents increases profitability, then these companies must hide the documents
because they owe their shareholders the maximum amount of profits no matter what, even if is
illegal or immoral to do so. As long as no individual person at the corporation is likely ever to be
criminally sanctioned, there will be no meaningful accountability for hiding documents. These
companies can hide documents by the hundreds for decades without ever being caught. To them, it
is a simple cost-benefit analysis. The benefits of hiding documents far outweigh the risks because
sanctions for doing so are rare and, when imposed, generally are small or inconsequential.
This is not to say that commercial transportation companies serve no valuable purposes. They do.
People and goods must be transported. A handful of these companies give back to their
communities by way of charitable donations. Yet, just because they are large and employ lots of
people, that is not a license for them to hide evidence in various ways, including behind privilege
logs, to escape the consequences of placing profits above safety. While government regulators can
and do police some negative corporate behavior, the reality is that we need exponentially more
regulators to properly police what goes on behind the closed doors of large corporations. An
alternative route to policing corporate misconduct is through litigation, in which judges are in the
best position to pry open the doors of a corporation’s document warehouse, to bring the truth to
light—to bring justice to an unfortunate situation.
Given how easy it is for corporations to hide their systemic corporate misconduct behind layers of
departments and committees, all of which diffuse and obfuscate responsibility, I urge you not to
make it even easier for corporations to escape accountability. If you do anything to the privilege log
rules, please make it harder for defendants and their attorneys to hide discoverable documents in
privilege logs. Thank you.
Very truly yours,
D. J. Young, III, Partner
The Law Firm for Truck Safety LLP
Cleveland, Toledo, Columbus, Nashville, Oklahoma City
PRIV-0011
July 16, 2021
Rules Committee Staff
Office of the General Counsel
Administrative Office of the US Courts
One Columbus Circle NE, Room 7-300
Washington, DC 20544
Re:
Comment on Privilege Log Practice
To Whom It May Concern:
Thank you for allowing me to comment on this very important issue. We all live in a
world where the majority of communication is done electronically via emails and text as well as
other electronic methods. As such, it is important that the rules of discovery follow suit. I do not
believe lumping all the documents into a category of documents is best. As a seasoned litigator I
have seen firsthand emails that would have been discoverable lumped into a category and then I
must ask the court to do an in camera inspection. Our courts are already over worked, and we
must make the rules so that they take pressure off the courts and require the litigators to do the
work, whether Plaintiff/Prosecution or Defense counsel. I believe it is important to list each
document with great specificity and clarity so that the Courts are not burdened and so that the
goal of litigation is consistent with truth and transparency. Please feel free to contact me with
any questions.
Sincerely,
/S/ Frances Carpenter
Frances C. Carpenter
PRIV-0012
From:
To:
Subject:
Date:
Samantha Heuring
RulesCommittee Secretary
Comment on Privilege Log Practice
Friday, July 16, 2021 2:25:48 PM
I write today in response to the invitation for comments on privilege log practice and to
inform the Committee that I oppose the proposed changes to Fed. R. Civ. Pro. 26.
For context, I am a plaintiffs’ lawyer practicing in the areas of employment discrimination,
civil rights, and personal injury. In my practice, the documents supporting my clients’
claims are almost always in the exclusive possession of the other side and are documents
that my client cannot access. This would prevent my clients from having equal access to
justice. Allowing parties to avoid a document by document description of the withheld
documents, in favor of allowing a mere category of documents to be identified, would be to
the unfair advantage of plaintiffs like my clients. It would effectively allow the defendants
to “hide the ball” by including documents in broad categories that, although the document
might be appropriately labeled in that category, the document should be disclosed.
Here are some specific examples of the problems that the proposed rule changes would
cause:
This example is based on a real case. Client is sexually assaulted by her supervisor
and reports it. Employer hires independent law firm to conduct investigation. Law
firm generates an engagement letter describing the scope of work to be performed in
the investigation. At conclusion of investigation, law firm generates a report
documenting its findings. If the employer was permitted to withhold documents and
identify the documents only by category, the employer could withhold both the
engagement letter and the investigative report as privileged documents. Without a
document by document description, the client has no way of knowing that an
engagement letter (which courts have ruled are NOT privileged) even exists.
Moreover, this non-privileged engagement letter would tell the client whether the
investigation was (1) conducted for the purpose of rendering legal advice to the
employer, which IS privileged, or (2) for the purpose of investigating the veracity of
the client’s claims, which fact-based investigation is NOT privileged. However,
without knowing exactly which documents were withheld as privileged, the client
has no way of arguing that the employer improperly withheld either the engagement
letter or the report as privileged.
Take this hypothetical example: an employee complained of racial discrimination in
the workplace via his work email address and, shortly thereafter, was terminated
purportedly for poor performance despite that no evidence supporting the poor
performance exists. Upon the employee’s termination, the employer blocks his access
to his email account. The employee files a suit for retaliatory termination based on his
reporting, and the employer defends by arguing that the employee never put the
employer on notice of racial discrimination in the workplace. The employee thus
needs the email that he sent complaining of racial discrimination, but the employer
withholds the document in discovery. Here, the employer could withhold the email
in a massive category of documents designated as “proprietary documents of
employer,” without indicating on the privilege log that the “proprietary documents”
category included the employee’s emails.
To provide all parties with equal access to justice under the law, parties must know
precisely what documents are being withheld in the discovery process. Otherwise, the
withholding party can “hide the ball” in a manner that deprives litigants of relief that they
are entitled to under law.
Best regards,
Samantha Heuring, Esq.
Douglas, Leonard & Garvey, P.C.
14 South Street, Suite 5
Concord, NH 03301
Phone: 603-224-1988
Fax: 603-229-1988
www.nhlawoffice.com
ATTENTION: This message is intended only for the designated recipient(s). It may contain
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or other confidentiality protections. If you are not a designated recipient, you may not
review, copy or distribute this message. If you receive this in error, please notify the sender
by reply e-mail and delete this message. Thank you.
PRIV-0013
Comments on Privilege Log Practice
The following comments are in response to the “Invitation for Comment on Privilege Log
Practice” (June 2021).
Commenter’s Background
I am submitting these comments as an attorney licensed in the State of Minnesota who
practices intellectual property litigation in federal courts and before administrative
courts that follow the FRCP. I handle primarily patent and trademark litigation, for both
plaintiffs and defendants. I represent individuals, small and medium sized businesses,
and large businesses, though in litigation matters I have generally not represented extralarge businesses (though I have represented clients against such entities). Throughout
my career of nearly 20 years I have worked at small-to-medium sized intellectual
property boutique firms.
Comments on Problems Experienced Under Current Rule
In my experience, preparation of a document-by-document log under Rule 26(b)(5)(A)
has not presented any major difficulties. Rule 1 and Rule 26(a)(1) and 26(b)(1), for
instance, present greater issues in typical cases. Shortly before the pandemic I attended
a CLE in which a presenter suggested that large corporate defendants adopt a “papering
over” defense strategy in civil litigation, by which he meant contravening Rule 1’s
instruction “to secure the just, speedy, and inexpensive determination of every action
and proceeding” by intentionally outspending a smaller plaintiff to try to win by attrition
rather than on the merits. Also, law firms tend to make money handling discovery
disputes and therefore have a vested interest to engage in them. In my experience, these
problems arise somewhat regularly through excessive and/or overly broad discovery
requests, or, alternatively, through excessive disputes over trivial discovery matters.
But those concerns are not specific to Rule 26(b)(5)(A).
Yet Rule 26(b)(5)(A) is not without some problems. In my experience, the most typical
problems are (a) over-designation of privilege or work-product grounds to withhold
discoverable materials, which is reflected in privilege log entries; (b) vague or generic
descriptions on privilege logs for particular entries that do not allow for meaningful
evaluation of the privilege claims; and (c) different standards applied by different district
courts. Points (a) and (b) are closely related. Parties making a good faith effort to comply
with the rules, with regard to document-by-document privilege logs in particular, can
be at a disadvantage in relation to parties who approach those issues in bad faith or in
a negligent manner. It seems to me that the FRCP should facilitate and encourage good
faith behavior and should not incentivize bad faith or negligent behavior. Specifying
penalties for non-compliance in a more explicit way might resolve this problem, because
in many ways rules are only as effective as their enforcement and there seems to be a
reluctance to penalize noncompliance with Rule 26.
1
Point (a). Extensive privilege logs are a symptom not a cause of problems in many
situations. In a case I was recently involved with, the magistrate judge issued an order
that stated, “The undersigned’s experience with past in camera reviews of purportedly
privileged documents suggests that lawyers, for a variety of reasons, tend to be far too
aggressive with their privilege assertions – seldom are more than 20% of those
documents actually entitled to protection.” Sudenga Inds. Inc. v. Global Inds., Inc., No.
2:18-cv-02498, at pp. 25-26 (D.Kan., May 15, 2020). To me, this sentiment is generally
correct, though I cannot speak to the exact percentage figure given by the judge
regarding in camera reviews. A document-by-document privilege log is crucial for the
requesting party to evaluate privilege assertions, particularly because privilege
assertions are often suspect or overbroad. In my experience, some of the most valuable
information contained in produced documents tends to be found in internal company
emails that contradict testimony or legal arguments by that party, for which a spurious
privilege assertion is sometimes made in order to try to avoid revealing such damaging
(nonprivileged) email materials. See, e.g., N.M. Oncology & Hematology Consultants v.
Presbyterian Healthcare Servs., 2017 U.S. Dist. LEXIS 130959 (D.N.M., Aug. 16, 2017);
In re Google Inc., 462 F. App’x 975, 976-79 (Fed. Cir. 2012) (No. 2012-M106). In the
absence of a privilege log, it would simply be easier for parties to lie or take contradictory
or hypocritical positions—though I will add that such issues sometimes arise not
because of intentional lying or fraud or even negligence but from disavowal. But looked
at another way, document-by-document privilege logs would not be so burdensome if
parties stopped making inappropriate privilege assertions in the first place. In this
respect, the “burden” of document-by-document privilege logs provides a useful—if
somewhat minor—benefit to the administration of justice by gently discouraging
voluminous but inappropriate privilege assertions.
Point (b). Vague or generic descriptions of documents on privilege logs are sometimes,
but not always, a problem in my experience. Though such issues are often inseparable
from underlying issues involving inappropriate assertions of privilege. See, e.g., United
States v. Louisiana, 2015 U.S. Dist. LEXIS 100238, *6-18 (M.D. La., July 31, 2015).
Vagueness can sometimes be resolved through discussions between counsel, though
usually not in instances in which the withholding party is making a baseless assertion
of privilege.
Point (c). Another problem I encounter when practicing in a variety of federal district
courts is that the requirements for privilege logs vary too much from district to district.
In my experience, when counsel overlook unusual local requirements, such issues have
been able to be worked out through discussions between counsel. Some areas where
significant district-to-district variations arise have to do with electronically-stored
information (ESI), particularly how to designate natively or near-natively produced ESI
on a privilege log versus ones produced on paper or in PDF format, how to list
attachments to emails or documents bundled in a *.zip file or the like, and how to
address redacted production on privilege logs. If the Rule addressed minimum (and
perhaps maximum) privilege log requirements in a way that was nationally uniform that
would seem to promote justice and the efficient resolution of cases.
2
As an addendum to my comments above about problems encountered, it seems that
extra-large businesses complain about discovery burdens that are a function of their
size. But it is important to recognize that this is akin to “coming to the nuisance”. That
is, businesses that choose to become very large are on notice that this creates a set of
difficulties associated with bigness that can be avoided by limiting or reducing corporate
size, in much the same way that law firms becoming large creates avoidable conflict of
interest difficulties. To the extent that such extra-large entities are the sort of parties
more often involved in “large document” cases the FRCP should not give them
preferential treatment based on their choice to remain large. I think it is useful here to
reference an article by Will Young, “How Corporate Lawyers Made It Harder to Punish
Companies That Destroy Electronic Evidence” Pro Publica (Jan. 27, 2020) at
<https://www.propublica.org/article/how-corporate-lawyers-made-it-harder-topunish-companies-that-destroy-electronic-evidence> that includes salient criticisms of
2015 FRCP amendments that the article portrays as unfairly catering to extra-large
corporate entities to the detriment to the fair administration of justice.
Comments on Possible Rule Changes
The following are comments about possible rule changes, including comments on
specific example proposals outlined in the invitation for comments.
In general, a helpful revision to Rule 26(b)(5)(A) would be to include some explicit
statement that a document-by-document log is normally required, and perhaps
outlining the minimum requirements for log entries, but also that the parties can agree
or the court may order more general descriptions of categories of documents (which may
be useful in “small” cases). If instead of document-by-document logs parties listed only
“categories” (I have never had anyone attempt to do this in my experience) there would
seem to be too much of an incentive to “hide” something in a broad category that does
not belong there—and there would be no practical way to know if an opposing party is
inappropriately “hiding” something in a broad category if there is no document-bydocument log.
One exception that is routinely agreed to by parties in cases I have been involved in is
to exempt post-commencement communications from privilege logging requirements.
Unless there are unusual circumstances and a good faith showing of need is established
(e.g., litigation misconduct becomes an issue), there seems to be no reason to log
privileged materials that were created after litigation begins because there is usually a
voluminous number of such communications related to the litigation but those
materials often have little legitimate legal value to the requesting party. Such a default
exception to document-by-document logging requirements might be considered in any
rule amendments to lessen burdens.
A revision to Rule 26(b)(5)(A) indicating that a document-by-document listing is not
routinely required, perhaps referring in the rule to the possibility of describing categories
of documents.
3
I am opposed to such a rule change. As explained above, a common problem is
inappropriate privilege assertions. To me, a better revision would be some explicit
statement that a document-by-document log is normally required but the parties
can agree or the court may order more general descriptions of categories of
documents.
Additionally, or in the alternative, post-commencement
communications could be exempted from privilege logging requirements.
A revision to Rule 26(f)(3)(D) directing the parties to discuss the method for complying with
Rule 26(b)(5)(A) when preparing their discovery plan, and a revision to Rule 16 inviting the
court to include provisions about that method in its scheduling order.
I am opposed to such a rule change. As explained above, a common problem is
inappropriate privilege assertions. To me, a better revision would be some explicit
statement that a document-by-document log is normally required but the parties
can agree or the court may order more general descriptions of categories of
documents. That would be similar to this proposal, but I believe that a
document-by-document privilege log should be the default requirement. Though
I recognize that, in some cases, descriptions of categories might be appropriate,
provided that the requesting party is still able to adequately evaluate claims of
privilege.
A revision to Rule 26(b)(5)(A) to specify that it only requires parties to identify “categories”
of documents. Alternatively or additionally, a revision to the rule might enumerate
“categories” of documents that need not be identified.
I am opposed to such a rule change. As explained above, a common (and larger)
problem is inappropriate privilege assertions. To me, a better revision would be
some explicit statement that a document-by-document log is normally required
but the parties can agree or the court may order more general descriptions of
categories of documents. I believe that a document-by-document privilege log
should be the default requirement, rather than “categories”. I am not sure I
understand the second part of this proposal entirely. But as far as I understand
the second part, it seems impossible on a practical level to enumerate categories
of documents that need not be identified in such a way that would be workable
across all the many different types of federal civil cases. Though postcommencement communications might be exempted from identification
requirements (unless good cause is shown to require identification).
4
From:
To:
Subject:
Date:
Attachments:
Austen Zuege
RulesCommittee Secretary
Comment on Privilege Log Practice
Friday, July 16, 2021 7:12:37 PM
Comment on Privilege Log Practice.pdf
Please find attached comments on privilege log practice.
---------- Forwarded message --------From: U.S. Courts <uscourts@updates.uscourts.gov>
Date: Thu, Jun 10, 2021 at 3:57 PM
Subject: Federal Rules: Request for Comment on Privilege Log Practice
To: <azuege@wck.com>
U.S. Courts News
uscourts.gov
uscourts.gov | news | court locator
Request for Comment on Privilege Log Practice
The Committee on Rules of Practice and Procedure and its Advisory Committee on Civil
Rules invite public input on privilege log practice. Specifically, the Advisory Committee would
like to determine:
the difficulties encountered in complying with Civil Rule 26(b)(5)(A); and
whether those difficulties could be solved by rule amendments.
Read more.
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PRIV-0014
From:
To:
Subject:
Date:
Brandon Peak
RulesCommittee Secretary
Comment on Privilege Log Practice
Sunday, July 18, 2021 11:25:45 AM
I write to express my strong opposition to the proposed changes to privilege log practice. My firm
and I routinely handle large, document-intensive cases. I have seen on numerous occasions how
parties attempt to evade legitimate discovery by claiming privilege or protection for documents that
are neither protected nor privileged. Requiring parties to log the documents they contend are
privileged or protected on a privilege log many times facially reveals that the documents are clearly
not privileged or protected because they have been, for instance, shared with non-lawyers or third
parties outside of the litigation. Changing this rule will undoubtedly cause more discovery
obfuscation by allowing parties to illegitimately withhold discoverable documents by falsely claiming
that they fall into a “category” of privileged documents.
Another problem with the proposed change is that the job of making privilege determinations
usually falls on young lawyers or contract lawyers with little experience or knowledge of the
respective law. A senior lawyer then reviews the log and many times removes documents from the
log and produces them because the log reveals that the documents are not privileged. This will not
happen if the junior lawyers are permitted to make privilege or work product decisions without
logging them and merely contending they wrongly fall into a “category” of privileged documents.
There is nothing wrong with the current rule. It is a fair, even-handed rule, which discourages
discovery misconduct by requiring lawyers to log documents on a privilege log. Making this change
will create more litigation and work for the courts, who will be tasked with reviewing numerous
documents that purportedly fall into broad “categories” of privilege or protection rather than a
targeted questions about specific documents logged on a privilege log.
Please do not change this rule.
Brandon Peak
Brandon L. Peak
Butler Wooten & Peak LLP
P.O. Box 2766
Columbus, GA 31902
(P) 706-322-1990
(F) 706-323-2962
www.butlerwootenpeak.com
Atlanta Office
2719 Buford Highway
Atlanta, GA 30324
(P) 404-321-1700
Savannah Office
The Realty Building, Suite 1000
24 Drayton Street
Savannah, GA 31401
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PRIV-0015
From:
To:
Subject:
Date:
Gene Brooks
RulesCommittee Secretary
Privilege log requirement
Monday, July 19, 2021 9:21:50 AM
I write in support of the privilege log requirement in Rule 26. This requirement is necessary for
prevention of non-production of relevant documents. Often, I will receive a host of objections to
Requests for Documents. The non-production of relevant documents are camouflaged by the
numerous objections, particularly when a large amount of documents are requested. There is no
way for me, as Plaintiffs’ counsel, to know what has been withheld, or even to know which of the
numerous objections are being asserted for any particular document. The only way to know what
documents the objections apply to is with a privilege log. I have recently had this exact experience
in state court. Once the privilege log was produced, we knew what objections applied to which of
the documents for which privilege was claimed. Then the Court was able to perform an incamera
inspection of the documents. Without the privilege log, there would not have been a procedure for
determining what documents were being withheld based on which asserted objection.
Gene Brooks
PO Box 9545
Savannah, Ga.
912-233-9696
gbrooks@brooks-law.com
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PRIV-0016
From:
To:
Subject:
Date:
Attachments:
Jasper Abbott
RulesCommittee Secretary
FRCP 26 changes
Monday, July 19, 2021 4:27:35 PM
1c. D Nationwides Privilege Log (12-3-20).pdf
To whom it may concern:
My name is Jasper Abbott. I am an attorney in Atlanta, Georgia. I am licensed in Oklahoma and Georgia. I
wanted to reach out to provide comments on proposed changes to FRCP 26. My understanding is that the
committee is considering softening the privilege log requirements so that simply listing "categories" of
documents is sufficient. Such a privilege log would not provide any useful information to challenge a privilege
claim. It would only increase the likelihood of motion practice whenever privilege claims are asserted. I have
attached an example of a "category" privilege log I received in a case. This log resulted in multiple hearings
with the court, forced the court to do an in-camera review of documents, and increased the cost of litigation for
all parties. A document-by-document log would have prevented such costs. So, I respectfully request that the
committee not change the privilege log standard. Thank you.
-As part of our firm’s effort to help slow the spread of the coronavirus, many of our people are working
from remote locations. We are requesting that all written materials be sent to us electronically, rather than
through physical mail and deliveries. Although we are working hard to ensure that operations continue as
usual, please bear with us during this time. Thank you and stay well.
Jasper Abbott
Attorney
Warshauer Law Group, P.C.
2740 Bert Adams Road
Atlanta, GA 30339
678.279.1414 (direct dial)
405.570.9090 (cell)
470.613.6881 (fax)
jasper@warlawgroup.com
www.warlawgroup.com
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IN THE STATE COURT OF DEKALB COUNTY
STATE OF GEORGIA
KAREN ZACHARY, AS NEXT OF KIN,
AND DULY APPOINTED
ADMINISTRATOR TO THE ESTATE OF
RHODA GLENN, DECEASED,
Plaintiff,
v.
RONALD MASON; KEYSTONE
PETROLEUM TRANSPORT, LLC; AND
NATIONWIDE AGRIBUSINESS
INSURANCE COMPANY,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION
FILE NO. 19A73768
NATIONWIDE AGRIBUSINESS INSURANCE COMPANY’S PRIVILEGE LOG
Defendant began to anticipate litigation in this matter on October 5, 2018 when the claim
was reported by its insured Keystone Petroleum Transport, LLC.
Date
Document Description
Privilege/Objection
Confidential proprietary information;
Work product prepared in
anticipation of litigation; AttorneyClient Privilege; Trial Prep
10/5/2018present
Claim File Notes regarding Claim
990637-GH; including internal legal
correspondence, correspondence
with insured, correspondence with
excess carrier, and correspondence
with outside Defense Counsel
Communications between
Nationwide and the Insured
Trial Prep; Work Product prepared in
anticipation of litigation
10/5/2018present
Internal communications within
Nationwide
Trial Prep; Work Product prepared in
anticipation of litigation
10/5/2018present
Communications between
Nationwide and Excess Carriers
10/5/2018present
Communications between
Nationwide and Defense Counsel
10/5/2018present
Copies of documents, photos and
tangible things from Defense
Counsel
Trial Prep; Work Product prepared in
anticipation of litigation
Trial Prep; Work Product prepared in
anticipation of litigation; AttorneyClient Privilege
Confidential proprietary information;
Work product prepared in
anticipation of litigation; Attorney-
10/5/2018present
client Privilege
4852-2047-0483, v. 2
PRIV-0017
From:
To:
Subject:
Date:
Robert W. Cobbs
RulesCommittee Secretary
Comment regarding privilege log practice
Tuesday, July 20, 2021 2:03:17 PM
Dear Reporter:
I am an associate with Cohen Milstein Sellers and Toll, a 100+ lawyer plaintiffs’ firm. My
practice is focused on antitrust class actions. I joined Cohen Milstein after graduating from
Yale Law School and clerking for judges in the United States Court of Appeals for the Second
Circuit and the United States District Court for the Eastern District of Texas. I understand you
are collecting comments regarding purported problems attorneys have in “large document”
cases preparing privilege logs that meet the requirements of Rule 25(b)(5)(A).
In my experience with “large document” cases like the antitrust class actions I litigate on a
daily basis, defense counsel routinely assert claims of privilege over documents where such a
claim is indefensible. It is no secret in such cases that defense-side privilege reviews are
typically performed by contract attorneys operating on short-term contracts with loose
oversight and only vague incentives to code correctly. Reviewing attorneys are encouraged to
over-designate, and the staff attorneys and associates who manage teams of contract
attorneys likewise have incentives to err on the side of claiming privilege. These incentives
also lead attorneys to designate entire documents rather than redact privileged portions of
mixed privileged/nonprivileged material.
Plaintiffs’ attorneys can often catch the most obvious errors, such as where no attorney is
listed on the “privileged” communication or where outside parties are listed as recipients. But
most often, plaintiffs must rely on the descriptions of the privileged documents to assess
whether a claim of privilege is legitimate. Grouping privilege claims into categories eliminates
plaintiffs’ ability to assess the claim, because it necessarily describes the claim in so general a
way as to apply to a broad swathe of documents. Moreover, allowing reviewers and their
supervisors to advert to a preapproved list of descriptions encourages them to
mischaracterize documents to fit into approved safe harbor categories.
I urge you to resist any change to the rules that would allow counsel to articulate the grounds
for their claim of privilege without enough specificity to assess the claim.
Thank you for considering my comment.
Best,
Rob Cobbs
Robert W. Cobbs
Cohen Milstein Sellers & Toll PLLC
Associate
1100 New York Ave. NW | Fifth Floor
Washington, DC 20005
phone 202.408.4600
fax 202.408.4699
website | map
Powerful Advocates. Meaningful Results.
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PRIV-0018
PRIV-0019
July 21, 2021
National Police
Accountability Project
A Project of the National
Lawyers Guild
Executive Director
Rachel A. Pickens
__________
Board of Directors:
President
Julia Yoo
Vice President
Jon Feinberg
Treasurer
Cynthia Heenan
Secretary
Anna Benvenutti Hoffman
Michael Avery
Cynthia Anderson Barker
John Burris
Frances Crockett Carpenter
Ben Elson
Howard Friedman
Alphonse A. Gerhardstein
Michael Haddad
Paul Hughes
Stanley King
William Most
R. Samuel Paz
David A. Robinson
Carol Sobel
Paul Wright
Advisory Board:
Karen Blum
Frederick K. Brewington
Erwin Chemerinsky
David Gespass
Terry H. Gilbert
Kate Kowalewski
Jonathan C. Moore
David Rudovsky
Barry Scheck
Joanna Schwartz
Flint Taylor
Via Email: RulesCommittee_Secretary@ao.uscourts.gov
Rebecca A. Womeldorf, Secretary
Committee on Rules of Practice and Procedure
Judicial Conference of the United States
One Columbus Circle NE, Suite 7-300
Washington, DC 20544
RE: Comment on Privilege Log Practice
The National Police Accountability Project (“NPAP”) is a nonprofit
organization dedicated to holding law enforcement and corrections
officers accountable to constitutional and professional standards.
NPAP has approximately six hundred attorney members representing
plaintiffs in civil rights cases in every region of the United States.
Every year, NPAP members litigate thousands of egregious cases of
law enforcement abuse that do not make news headlines, as well as the
cases that capture national attention. We strongly urge the Discovery
Subcommittee of the Advisory Committee on Civil Rules (“the
committee”) to reject proposed changes to current privilege log
requirements.
Federal Civil Rule of Procedure (“FRCP”) 26(b)(5)(A) sets forth the
process for a party to withhold otherwise discoverable information
under the claim of privilege. The rule requires the party claiming
privilege to describe the documents and other information being
withheld in enough detail for the opposing party to determine
whether the claim of privilege is appropriate.
The question of whether a particular privilege should apply is often
nuanced and fact-intensive.1 Accordingly, even a party acting in
good faith can incorrectly invoke privilege for information that
should be disclosed. The opportunity to assess details of each
specific document ensures the requesting party can challenge
incorrect claims of privilege. The rule also empowers a requesting
party to quickly identify and challenge bad faith invocations of
privilege. The committee is contemplating changing FRCP
26(b)(5)(A) so that a party would be able to simply note the
categories of withheld information rather than providing a
description for each document that was not disclosed.
See Eg. Valero Energy Corp. v. U.S., 569 F.3d 626, 630 (7th Cir. 2009)(noting
questions of privilege are “fact-intensive, case-specific questions”); United States v.
Doyle, 2018 U.S. Dist. LEXIS 66980 at *20 (Apr. 19, 2018).
1
This change, if adopted, will make it much more difficult for litigants, and particularly civil rights
plaintiffs, to obtain information they need to support their case. In the context of civil rights cases against
law enforcement, a detailed privilege log is necessary to engage in the case-specific and fact-specific
balancing of interests essential to determining whether information should be disclosed.2
Claims of privilege are a persistent feature of discovery in police misconduct cases. Police defendants
being sued for civil rights violations will often claim privilege to shield internal affairs records, use of
force policies, or other information critical to a plaintiff’s case. In particular, police defendants
commonly invoke governmental privileges such as deliberative process privilege, executive privilege,
and confidential informer privilege. The propriety of each of these privileges would rarely be obvious
from a categorical description and would turn on the high-level detailed description of the specific
document.3 Standard privileges such as attorney-client privilege may also apply and cannot always be
assessed from a categorical label. Without the benefit of a document-by-document description, plaintiffs
have no way to know which claims of privilege are improper and would be deprived of crucial
information needed to advocate for disclosure.
In addition to the critical role discovery plays in supporting a plaintiff’s claims, it is also essential to
advancing police transparency and often the only method through which communities and grieving
families can obtain accurate information about incidents of police brutality. State confidentiality laws
severely restrict public access to accurate information about officer involved shootings and other critical
incidents. Civil rights lawsuits and the evidence that comes to light in the course of discovery help
expose officer misconduct and uncover abusive cultures of policing. Permitting blanket claims of
privilege will undermine the police transparency goals that discovery promotes.
NPAP is deeply concerned that the contemplated changes would significantly undercut the ability of
civil rights plaintiffs to obtain relief through the federal courts and increase police secrecy. We urge the
committee to reject any change that would reduce information a party must currently provide to withhold
documents pursuant to a claim of privilege.
Sincerely,
Lauren Bonds
Legal Director
National Police Accountability Project
Kelly v. City of San Jose, 114 F.R.D. 653, 667-69 (N.D. Cal. 1987).
Providence Journal Co. v. U.S. Dept. of Army, 981 F.2d 552 (1st Cir. 1992)(explaining that agency must show the specific
decision to which document correlates to assist agency official prior to final decision to properly claim deliberative process
privilege); U.S. Dept. of Justice v. Landano, 508 U.S. 165 (1994)(outlining the multi-factor considerations necessary to determine
whether informer privilege was properly invoked).
2
3
PRIV-0020
July 22, 2021
Via E-Mail: RulesCommittee_Secretary@ao.courts.gov
MEMBERS OF THE JUDICIAL CONFERENCE
ADVISORY COMMITTEE ON CIVIL RULES
Re:
F.R.C.P. 26(b)(5)(A) – Privilege Logs
To the Members of the Advisory Committee on Civil Rules:
Since graduating law school more than 20 years ago, I have been a plaintiffs’ lawyer. My
firm handles a broad range of complex cases. We litigate class actions of all descriptions (including
employment, consumer, and product defect matters), and also represent plaintiffs in mass torts.
Having lectured and written extensively on privilege logs over the years, I welcome the opportunity
to comment on this important subject.
I do not advocate any change to Federal Rule of Civil Procedure 26(b)(5)(A) (the
“Rule”). If the Committee were to consider any changes, I would support the addition of a
requirement that the parties negotiate the scope, format and timing of the exchange of privilege logs
as a part of the requirements set forth in Rule 26(f)(3)(D).
The importance of a detailed privilege log cannot be understated. In complex cases, where
defendants may produce millions of pages of documents, corporations inevitably withhold
thousands, or even tens of thousands, of documents based on assertions of privilege or work
product protection. In my experience, however, once plaintiffs scrutinize the privilege log, and
challenge improper privilege assertions, scores of documents that were improperly withheld get
produced.
The reasons for improper withholding can range. Law firms tasked with reviewing a large
universe of documents for responsiveness and privilege often rely on low-level associates. Their
inexperience, or lack of training, may make them overly cautious, and result in excessive privilege
claims. Additionally, the application of privilege is not always straightforward: judgment calls must
often be made. Some lawyers tend to be more aggressive in their interpretation of the principles
justifying privilege, and, certainly, a team of lawyers may not apply those principles uniformly.
Unless the resulting privilege log is sufficiently detailed, the opposing party (and the court) will be
unable to identify whether the decision to withhold any particular document could be the result
overzealous lawyering, inconsistent application of the privilege, sloppiness, inexperience or some
other factor.
The privilege log dispute that played out in the mass tort In re Avandia Marketing Sales Practices
and Products Liability Litigation, MDL No. 1871 in the Eastern District of Pennsylvania, provides a
good example of the abuses that occur, and the massive effort required by the parties and the courts
to address them when they do. In that case, the pharmaceutical defendant produced a privilege log
on a rolling basis. Eventually, that log grew to nearly 100,000 withheld documents. The privilege
_________________________________________________________
155 Montgomery Street ∙ Suite 900 ∙ San Francisco, California 94104
T: 415.986.1400 ∙ F: 415.986.1474 ∙ lori@andrusanderson.com
July 22, 2021
Page 2
log in the Avandia case was particularly egregious. More than 3,500 purportedly privileged
documents had third parties as recipients (such that any existing privilege had been waived). Nearly
6,000 entries showed that an attorney was merely “cc’d” on the communication. Another 5,700
documents had no attorney involvement whatsoever in the withheld communication.
Plaintiffs’ Counsel convened a team, on which I served, to review the privilege log, to seek
clarification on entries with insufficient information, and to challenge entries that improperly
invoked a privilege. In our first challenge, the Special Discovery Master reviewed, in camera, 120
documents that Plaintiffs believed to be improperly withheld. Based on that review, he ruled that 95
of the 120 documents were not privileged. When the Article III judge considered his ruling (and
reviewed the documents herself), she went even further: 20 additional documents were determined
not to be privileged and five were determined to be discoverable with redactions. After multiple
rounds of challenges, the defendant was eventually ordered to completely re-do its privilege review,
produce improperly withheld documents, and revise its privilege log accordingly. Right prevailed,
but only with a diligent fight, active participation by the court, and, most importantly, the
recognition that privilege logs must be detailed to enable scrutiny.
Privilege logs are not merely an administrative exercise, nor are they a valid basis to complain
about the rising costs of discovery. They are an exceptionally potent tool for burying evidence. As
the Avandia case demonstrate, without proper oversight, tens of thousands of documents can be
withheld from discovery. To avoid abuses of this nature, robust policing of privilege logs is
necessary. Without detailed logs, defendants ask the court to “take our word for it,” with no
accountability.
Given the importance of this issue, then, it is incumbent on the parties to come to
agreement early in every case on the scope, timing and format of privilege logs. Without such
negotiation, costly disputes will arise later. Privilege logs should be produced early, and on a rolling
basis. They should be produced in a useable electronic format (like Excel, not a fixed/unsearchable
PDF). They should include a sufficient number of columns, negotiated by the parties, such that a
proper evaluation of the log can be conducted by the opposing party and the court. 1
Under no circumstances should the Rule be changed to indicate that categorical
privilege logs are sufficient. Categorical logs tend to “obscure[] rather than illuminate the nature
of the materials withheld.” Chevron Corp. v. Salazar, No. 11 Civ. 3718(LAK(JCP), 2011 WL 4388326,
* 1 (S.D.N.Y. Sept. 20, 2011). In cases where a party can substantiate that creating a document-bydocument log would present a disproportionate burden, that party can seek relief through a
protective order under subdivision Rule 26(c). Even where a party can satisfy the requirement of
showing that its burden outweighs the need for a document-by-document privilege log, categorical
logs must still provide “sufficient detail to permit a judgment as to whether the document is at least
potentially protected from disclosure.” United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473
(2d. Cir. 1996). Further, any categorical log still must identify particular dates, recipients, sources,
1
For example, I always insist that the “from, “cc” and “bcc” information be broken out into
separate columns in the log. If all recipients are lumped into a single column, it is impossible to tell
whether a lawyer was merely cc’d (potentially invalidating a claim of privilege). I also ask defendants
to identify counsel and any third parties with an asterisk or other typographical indicator so that
those individuals’ status as someone who may justify the privilege (a lawyer)—or may waive the
privilege (a third party)—is obvious on the face of the privilege log.
July 22, 2021
Page 3
and a detailed description of the reasoning underlying the application of the privilege. For these
reasons, categorical logs really only conserve resources when they skimp on such details, an all-toocommon phenomenon.2 Formally recognizing categorical logs in the Rule would encourage those
desiring a minimalist approach (for economic reasons or for the added benefit of avoiding scrutiny
when withholding evidence) and make it harder for improperly withheld documents to be identified,
all the while increasing the work required by all parties and the court.
Sincerely,
Lori E. Andrus
2
Categorical privilege logs have proved inadequate, and unwarranted, time after time. See, e.g.,
Companion Prop. And Casualty Ins. Co., Civil Action No. 3:15-cv-01300-JMC, 2016 WL 6539344
(D.S.C. Nov. 3, 2016) (categorical log “does not allow a realistic determination of the applicability of
a privilege”); Tyco Healthcare Group LP, et al. v. Mutual Pharm. Co., Civil Action No. 07-1299
(SRO)(MAS), 2012 WL 1585335 (D.N.J. May 4, 2012) (defendant failed to substantiate the burden
of creating a document-by-document log); First Horizon Nat’l Corp. v. Houston Casualty Co., No. 2:15cv-2235-SHL-dkv, 2016 WL 5867268 (W.D. Tenn. Oct. 5, 2016) (categorical log would be too
“minimal and vague and would prevent the court from evaluating the privilege claimed”) (listing
cases); Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2017 WL 943927 (E.D.N.Y. Mar. 9, 2017
(“skeletal” descriptions in categorical log insufficient to evaluate the privilege). In each of these
instances, the parties and the court would have been saved much time and effort had a documentby-document log been provided in the first place. See, e.g., Bethea v. Mecrhants Comm. Bank, Civil
Action No. 11-51, 2012 WL 5359536 (D.V.I. Oct. 31, 2012) (detailed privilege log conserves judicial
resources).
From:
To:
Subject:
Date:
Attachments:
Maria Diamond
RulesCommittee Secretary
Privilege Log Practice
Thursday, July 22, 2021 2:38:39 PM
PRIV-0021
Dear Members of the Advisory Committee on Civil Rules:
Since graduating from law school 38 years ago, I have been a plaintiff’s civil litigation attorney. My
practice includes product liability, medical negligence, general personal injury and insurance cases.
I do not advocate any changes to Fed. R. Civ. P. 26(b)(5)(A) governing privilege logs. Over the years
that I have practiced, I have been involved in a number of privilege log disputes, most frequently in
the area of product liability. In complex products cases, it is not uncommon for defendants to
produce many thousands and even millions of pages of documents, invariably withholding a
substantial number based on claims or privilege or work product protection. However, once
plaintiff’s counsel carefully reviews the privilege logs and challenges improper privilege claims, many
documents that were improperly withheld by the defense get produced.
It is already very challenging for plaintiffs to obtain relevant documents that defendants seek to hide
under the guise of privilege. Changing the rule to allow categorical privilege logs will only exacerbate
these challenges by obscuring instead of illuminating the nature of the documents withheld. I can
think of multiple cases, including a surgical stapler product liability case in which I am currently
involved, where documents relevant to plaintiff’s liability claims would not have been discovered
and ultimately produced but for the current requirement that individual documents be described.
Furthermore, changing the rule will lead to increased motions practice.
Thank you for your consideration of my comments.
Respectfully submitted,
Maria S. Diamond
It is not the critic who counts; not the man [or woman] who points out how the strong man [or woman]
stumbles or where the doer of deeds could have done them better. The credit belongs to the man [or
woman] who is actually in the arena, whose face is marred by dust and sweat and blood; who strives
valiantly; who errors, who comes short again and again, because there is no effort without error and
shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great
devotions; who spends himself [or herself] in a worthy cause; who at best knows in the end the triumph of
high achievement, and who at the worst, if he [or she] fails, at least fails while daring greatly.
—Theodore Roosevelt
DiamondMassong, PLLC
Where Law and Medicine Merge
1215 Fourth Avenue, Suite 1275
Seattle, WA 98161
Phone: 206.445.1258
Fax: 206.445.1257
maria@diamondmassong.com
www.diamondmassong.com
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PRIV-0022
From:
To:
Subject:
Date:
Narine Mkrtchyan
RulesCommittee Secretary
Privilege log rule changes proposal
Thursday, July 22, 2021 5:08:13 PM
To whom it may concern :
As a civil rights attorney I vehemently oppose this proposal to change the rule requiring
specific description of the documents withheld on the privilege log. In most cases the city
withholds many documents that are subject to disclosure on grounds of privileges that are
normally overruled . However , if they are allowed not to specify the documents withheld and
provide only a generic description of records, it will help them to suppress material records
from disclosure and we would never learn what responsive records exist. I have had this
experience in a recent case where the city provided only a generic description of records
which didn’t allow the assigned magistrate decide what records exist and how to rule on our
requests. As a result we didn’t get records that we know exist in the agency.
I sincerely request this proposal to be rejected as it would greatly undermine discovery in
police misconduct litigation.
Thanks.
Narine Mkrtchyan
Attorney at law
MKRTCHYAN LAW
1010 N. Central Ave, Suite 204
Glendale, CA 91202
Tel. (818) 388-7022
Web: www.narinelaw.com
Email: attorney@narinelaw.com
PRIV-0023
PRIV-0024
From:
To:
Subject:
Date:
Ian Bratlie
RulesCommittee Secretary
Privilege log changes
Friday, July 23, 2021 12:12:34 PM
Dear committee,
I am greatly concerned about the proposed changes to the privilege rule changes in that they
will greatly impact police litigation in a negative way. Victims of police abuses - more often
than not, people of color - will be disproportionately impacted by the proposed rule change.
Police litigation is already strongly tilted against plaintiffs and this rule change would make it
even harder for victims to prove their claims in court. I assume the committee did not consider
the impact of this rule on people of color when it proposed it and I am hopeful that, once you
review this concern, you will not adopt the proposed rule change.
Sincerely,
Ian Bratlie
PRIV-0025
4705 Somers Avenue, Suite 100
North Little Rock, AR 72116
501-791-2277
TURNER & ASSOCIATES, P.A.
Attorneys at Law
Tab Turner
tab@tturner.com
July 23, 2021
VIA CERTIFIED MAIL
The Hon. John D. Bates
The Hon. Robert M. Dow, Jr.
Chairs Advisory Committee Rules
Committee Rules of Practice and Procedure
of the Judicial Conference of the United
States
Washington, DC 20544
RulesCommittee_Secretary@ao.uscourts.gov.
Re:
Comment on Rule 26(b)(5)(A)
Dear Judges Bates and Dow:
The following comments are provided in response to the invitation for comments
about privilege log practice and the suggestion to amend Fed. R. Civ. P. 26(b)(5)(A),
including the consideration of switching to categorical logging.
I have spent close to 40 years in civil litigation, starting as an associate at a large
defense firm, and then in my own firm. I would ask that the proposed change be rejected
because, in my experience, clearly defined rules on logging privilege specifics aid in
efficiency and fairness, while categorical logging does not save resources, adds to the
disputes, and aids in the broad withholding of relevant non-privileged documents.
As we have all experienced, document productions have grown exponentially
over the years. A document-by-document listing of alleged privileged materials, with
specificity, has been the rule, not the exception. Requiring a party to define the type of
document; the general subject matter of the document; the date of the document; and such
other information as is sufficient to identify the document, including, where appropriate,
SAN DIEGO OFFICE
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the author, addressee, custodian, and any other recipient of the document, and, where not
apparent, the relationship of the author, addressee, custodian, and any other recipient to
each other helps, does not hurt the process. It defines the issues for the parties and
narrows disputes. Changing these rules will create needless arguments, litigation, and
expense.
Concerns about the costs or diversion of time to create these logs are self-serving
and simply inaccurate. Switching to categorical logging will further complicate discovery
in already complex cases, increase potential privilege disputes, and create confusion and
inefficiency.
I urge you to reject this push for change.
Thank you for this opportunity to comment on this important topic.
Sincerely,
Tab Turner
CTT/ts
SAN DIEGO OFFICE
1001 B Avenue, Suite 308
Coronado, CA 92118
619-537-0007
SCOTTSDALE OFFICE
7420 E. Pinnacle Peak Road
Scottsdale, AZ 85255
480-419-4011
PRIV-0026
July 23, 2021
Dear Rules Committee,
I am a partner at Nelson & Fraenkel LLP, a small (5-10 attorney) plaintiff’s litigation firm located
in Los Angeles and San Francisco, CA. I personally focus heavily on products liability cases, particularly
aviation related matters. My cases are venued nationwide, in both state and federal courts. I have litigated
a significant number of wrongful death and personal injury matters arising out of plane crashes which
were caused by product defects including but not limited to failed engines and their components, fuel
systems and their components, avionics, GPS systems, autopilots, etc. I regularly litigate against large and
small manufacturers of aviation products including Boeing, Honeywell, Lycoming, Airbus and
Eurocopter, to name a few. I also handle non-aviation matters that involve product defects such as biking
and trucking incidents, among others.
I am writing to give my input on the proposed changes to Rule 26(b)(5)(A) concerning privilege
log requirements. Claims of privilege are pervasive in products liability cases, particularly by the aviation
products manufacturers I deal with on a regular basis. Almost every case I handle involves a defendant
proposing a confidentiality agreement / protective order. Because such agreements involve a lengthy
process and often require a court order, the interim discovery process typically involves claims of
privilege for documents that defendants claim contain trade secrets and proprietary business information,
among other confidential information.
It has been my experience that, in response to written discovery concerning claims focused on
product design, manufacture, and failures, defendants routinely assert claims of privilege and
confidentiality as a reason to withhold information and documents. In the rare scenarios where defendants
actually provide a privilege log to accompany those objections on the first go-around, such privilege logs
rarely comply with the requirements of Rule 26(b)(5)(A) to “expressly” demonstrate the basis for the
privilege or provide enough information for us to properly evaluate the basis for the claims. They are
merely categorical claims of privilege to justify boilerplate objections.
The result of the current rule, and how it is followed in practice, is lengthy meet and confer
scenarios often followed by expensive and time-consuming motion practice. I have found that, if the
matters ever do make it to a judge or discovery master, the arbiter will typically just try to compromise,
“spit the baby” and placate both sides. Ultimately, I am usually left in the situation where I truly don’t
know what is being withheld, and it seems as though defendants could find a loophole to justify
withholding of any particular damaging document if they truly wanted.
Thus, if anything, Rule 26(b)(5)(A) should only be amended in a way that will more adequately
explain the claiming party’s duty to expressly state its privileges. I am strongly opposed to rule changes
that will either 1) indicate that a document-by-document listing is not routinely required, or 2) specify that
the claiming party need only identify “categories” of documents under privilege. As to the latter, this
language would unquestionably only result in more protracted meet and confer sessions followed by
almost inevitable motion practice and unnecessary use of the court’s resources. I can easily imagine, in
Rules Committee
Page 2
my practice, manufacturer defendants taking unfair advantage of such a rule and routinely listing
categories such as “financial documents applicable to the model fuel pump” or “revisions to design
drawings for the model crankshaft”. Such categories would be incredibly vague and leave the opposing
party with very little basis to evaluate the claims.
In sum, loosening the requirements or integrating less specific duties on parties claiming privilege
would be unduly prejudicial to plaintiffs who are seeking relevant and discoverable material related to
products claims. As it stands, parties claiming privilege already skirt around the requirements and provide
little specificity.
Thank you for your time and consideration of these comments. Please feel free to contact me if
you want any further input in this matter.
Regards,
Nicole C. Andersen
PRIV-0027
Submitted via Email: RulesCommittee_Secretary@ao.uscourts.gov
Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, NE
Room 7-300
Washington, D.C. 20544
Attention:
Re:
Honorable David G. Campbell – Chair
Professor Catherine T. Struve – Reporter
Response to the Request for Input on the Components and Procedures for
Privilege Logs in Civil Litigation
Dear Rules Secretary:
The Federation of Defense & Corporate Counsel (FDCC) is a not-for-profit corporation
with national and international membership of 1,477 defense and corporate counsel working in
private practice or as in-house counsel, and as insurance claims representatives. FDCC members
practice in the trial and appellate courts of the United States and of all 50 states. The FDCC’s
efforts center on affording unfettered access to justice for all while also working to protect and
advance the rule of law.
Since 1936, its members have established a consistent and strong legacy of representing
the interests of civil litigants, including publicly and privately-owned businesses, public entities,
and individual defendants. The FDCC seeks to assist courts and related entities in addressing
issues of importance to the profession generally and its membership specifically that concern the
fair and predictable administration of justice.
With that mission in mind, FDCC writes to support reforms to the privilege log component
of Federal Rule of Civil Procedure 26(b)(5)(A). Our members are familiar with the burden of
privilege logs as they regularly utilize the provisions of the Rules in their practice. The Rule
provides:
When a party withholds information otherwise discoverable by
claiming that the information is privileged or subject to protection
as trial-preparation material, the party must: (i) expressly make the
claim; and (ii) describe the nature of the documents,
communications, or tangible things 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.
While the 1993 Comments to the Rule make it explicit that the Rule is not intended to
“define for each case what information must be provided when a party asserts a claim of privilege
or work product protection,” in practice what has developed in some jurisdictions is a very strict
protocol for logging each and every document with details surrounding the claims. Yet in other
jurisdictions, the protocol may be much more relaxed. Often, the protocols are unwritten and more
of a localized practice. Accordingly, there is confusion across the federal courts and parties as to
what is required in order to comply with the Rule, and a concern that doing the wrong thing will
waive a privilege or result in sanctions. Compare for example the holdings of Johnson v. Ford
Motor Co., 309 F.R.D. 226, 233 (S.D. W.Va. 2015) (granting a motion to compel and ordering a
more detailed privilege log but denying a request to find a waiver of privilege); Green v. Suzlon
Wind Energy Corp., 2011 WL 13177733 at*1 (W.D. Okla. 2011) (holding the privilege log was
inadequate but granting 15 days to amend the log) with Williams v. Taser Int’l, Inc., 274 F.R.D.
694, 698 (N.D. Ga. 2008) (holding attorney-client privilege and work product doctrine claims were
waived); A.I.A. Holdings S.A. v. Lehman Bros, 2002 WL 31385724 at *8 (S.D.N.Y. 2002) (“failure
to list privileged documents on the required log of withheld documents in a timely and proper
manner operates as a waiver of any applicable privilege. . . .”). A lack of uniformity in the federal
system has resulted.
Adding to that confusion, increases in technology and a tenfold increase in the amount of
electronically stored information since the provision was enacted in 1993 can result in a substantial
burden and expense on the parties. In some cases, the amount of data is such that it is not
reasonable—or even possible—to insist upon a document by document identification in a log. The
Chief Judge of the Commercial Division of the New York State Supreme Court’s Task Force on
Commercial Litigation stated in 2012 that:
Creation of privilege logs has become a substantial expense in
complex commercial litigation matters. Often, the cost outweighs
their value because the logs are not reviewed or used in any way by
the courts. There is demonstratable need to limit unnecessary costs
and delay in the creation of these logs while preserving the ability
of the parties and court to police unwarranted withholding or
redaction of documents in discovery.
Report and Recommendations to the Chief Judge of the State of New York, The Chief Judge’s
Task Force on Commercial Litigation in the 21st Century, June 2012 (Report and
Recommendations), p. 17, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115510 (last
visited July 21, 2021).
Thus, the problems with the privilege log provision are well-documented. FDDC supports
practical solutions to these problems, in keeping with Rule 26’s demand for proportionality.
Specifically, FDCC supports the following practical, common sense approaches:
Page | 2
•
•
•
•
•
•
Categorical, rather than document-by-document, logging of claims;
Not requiring parties to include documents that satisfy the privilege
or work product requirements prepared after the date the lawsuit was
filed;
Not requiring parties to include communications with its trial
counsel or work product of its trial counsel;
Not requiring parties to include documents produced with redactions
with the redaction rationale clearly marked;
Requiring Rule 16(f) discussions about the entry of privilege nonwaiver orders or other protection under FRE 502(d) as well as the
timing of privilege logs. A good discussion examples can be found
in The Protection Order Toolkit: Protecting Privilege with Federal
Rule of Evidence 502, Patrick L. Out, THE SEDONA
CONFERENCE JOURNAL (2009); and
Explicitly encouraging the availability of cost-shifting where
electronic stored information makes the demands of certain logging
burdensome.
FDCC thanks the Committee in advance for its hard work in considering the issues involved
in the privilege log requirements and for the opportunity to provide comment. For the reasons
stated herein, FDCC encourages practical reform to ensure that the provision is complied with
uniformly across all federal courts in a way that does not substantially burden the parties but
instead is proportional to the needs of the case. We and our members are available to respond to
any particular questions, or requests for additional information the Committee may have, and look
forward to working with the Committee going forward.
Respectfully submitted,
Michael T. Glascott
President
Page | 3
PRIV-0028
FINE, KAPLAN AND BLACK, R.P.C.
ROBERTA D. LIEBENBERG
JEFFREY S. ISTVAN
GERARD A. DEVER
PAUL COSTA
ADAM J. PESSIN
MARY L. RUSSELL
RIA C. MOMBLANCO
JESSICA D. KHAN
JOSEPH J. BORGIA
ATTORNEYS AT LAW
ONE SOUTH BROAD STREET, 23RD FLOOR
PHILADELPHIA, PENNSYLVANIA 19107
(215) 567-6565
FAX: (215) 568-5872
E-mail: mail@finekaplan.com
www.finekaplan.com
ALLEN D. BLACK
ARTHUR M. KAPLAN
DONALD L. PERELMAN
MATTHEW DUNCAN
ELISE E. SINGER
ROBERT A. LARSEN
OF COUNSEL
AARON M. FINE
1923-2013
July 23, 2021
VIA EMAIL - RulesCommittee_Secretary@ao.uscourts.gov
Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
One Columbus Circle NE
Washington, DC 20544
RE: Invitation for Comment on Privilege Log Practice
Dear Members of the Committee:
I write on behalf of the law firm of Fine, Kaplan and Black in response to the Invitation
for Comment on Privilege Log Practice. Fine Kaplan believes that document-by-document
privilege logs are an essential discovery tool, and any amendment to Federal Rule 26(b)(5)(A)
is unnecessary and unwarranted.
Fine Kaplan is a nationally recognized law firm that devotes its practice entirely to
litigation, with particular emphasis on antitrust, class actions, complex commercial litigation,
consumer protection, and white-collar criminal defense. We represent both plaintiffs and
defendants, including Fortune 500 companies.
In our firm’s experience, over-designation for privilege is a significant problem, and
document-by-document privilege logs are the only way to root out improperly designated
documents. Document-specific information often enables opposing counsel to determine that
certain documents are not actually privileged. i.e., the communication included a third party;
the lawyer was merely copied on a non-privileged communication sent to multiple nonattorneys; no lawyer was included on a particular communication; the attachment is unlikely to
be privileged; the subject matter appears to be business-related, not legal, etc. Privilege logs in
alternative formats, such as categorical privilege logs, are incapable of providing that level of
specificity and thus do not allow a party or a court to meaningfully assess the legitimacy of the
claim of privilege. Therefore, courts have generally insisted upon detailed document-bydocument privilege logs. See, e.g., Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No.
Committee on Rules of Practice and Procedure
Page 2
114CV00006RLMSLC, 2016 WL 11033846, at *4 (N.D. Ind. Nov. 4, 2016) (“Here, Hartford
Iron’s privilege logs assert a blanket claim of privilege as to categories of correspondence or
communications by date. This is insufficient, as ‘[t]he claim of privilege cannot be a blanket
claim; it must be made and sustained on a question-by-question or document-by-document
basis.’”) (citations omitted); First Horizon Nat'l Corp. v. Houston Cas. Co., No. 2:15-CV2235-SHL-DKV, 2016 WL 5867268, at *7 (W.D. Tenn. Oct. 5, 2016) (“In sum, in the absence
of a document-by-document log, the court or the Defendants cannot assess whether the
privilege claim is well grounded.”); Cobb Elec. Membership Corp. v. Zurich Am. Ins. Co., No.
1:09-CV-0675-CAP-WEJ, 2010 WL 11500063, at *6 (N.D. Ga. Mar. 29, 2010) (“Blanket
assertions of privilege, not specifically asserted with respect to particular documents, ‘disable
the court and the adversary party from testing the merits of the claim of privilege.’ The party
asserting the privilege bears the burden of establishing that the documents it refuses to produce
are privileged. It is difficult to comprehend how a party could satisfy that burden with respect
to any document that it identifies only by ‘generic’ category.”) (internal citations omitted);
Coltec Indus., Inc. v. Am. Motorists Ins. Co., 197 F.R.D. 368, 371 (N.D. Ill. 2000) (“A claim of
privilege cannot be a blanket claim, but must be made and established on a document-bydocument basis. The scope of the privilege is narrow, because it is a ‘derogation of the search
for truth.’ We stress that each of these elements must be established as to each document, as
the mere existence of an attorney-client relationship is not sufficient to cloak all
communications with the privilege.”).
The tendency to over-designate for privilege is especially prevalent with respect to
email communications. For example, it is not uncommon for some attorneys to broadly
designate an entire email chain as privileged simply because a lawyer is involved in one or
more of the emails in the chain. Such chains often include non-privileged, purely factual emails
between non-lawyers that are later forwarded to a lawyer, and privilege is improperly asserted
over the entire email chain. If each email is logged separately, it becomes clear that there is no
proper claim of privilege over the entire chain. Loosening the specificity requirements for
privilege logs would only exacerbate the over-designation problem and lead to the concealment
of relevant, non-privileged documents.
Further, the burden of preparing privilege logs is often self-imposed. Multiple
mechanisms are already available to reduce the burden and cost of privilege review and
privilege log preparation. For example, in large document cases, experienced counsel
frequently agree in advance to a privilege log protocol. The stipulated protocol approved by the
court in In re Generic Pharmaceuticals Pricing Antitrust Litigation, MDL No. 2724 (E.D. Pa.),
gave Defendants the option to either (i) log every lesser-included email in a chain, or
alternatively, (ii) log a single entry for the entire chain and produce a redacted version of the
entire email chain.1 Not one of the forty corporate defendants elected to use the latter
alternative, which would have enabled them to avoid logging every email in a chain while still
1
See Pretrial Order No. 95 ¶ 11.1 (ECF 1045).
Committee on Rules of Practice and Procedure
Page 3
providing the plaintiffs with sufficient information to evaluate the claim of privilege. Further,
F.R.E. 502(d) clawback agreements, which our firm routinely enters into with opposing
counsel, including in the Generic Pharmaceuticals Pricing Antitrust Litigation,2 are available
to reduce the burden of privilege review and privilege log preparation.
It appears that the primary proponent of an amendment to Rule 26(b)(5)(A) is Lawyers
for Civil Justice. In their August 4, 2020 “Suggestion for Rulemaking,” they argued in their
Introduction (p. 1) that “the modern privilege log [is] as expensive to produce as it is useless.”
(quoting Chevron Corp. v. Weinberg Group, 286 F.R.D. 95, 99 (D.D.C 2012)). However, they
fail to note that the privilege log in that case was deemed “useless” by the court because it
contained “generic,” “boilerplate” descriptions of the subject matter of the communication
claimed to be privileged. Id. at 99.
In our view, the Chevron case actually supports our position that more detail, not less,
should be provided in privilege logs. Also, the assertion by Lawyers for Civil Justice that there
is a widespread belief on the part of the judiciary, parties, and litigators that there is a need for
amendment to Rule 26(b)(5)(A) to require less specificity in privilege logs is simply
unfounded. Moreover, adoption of the Lawyers for Civil Justice’s proposal to afford parties
greater latitude in designating entire categories of documents as privileged would invariably
lead to more “satellite litigation” about claims of privilege because the receiving party would
not have sufficient information to verify that the claim of privilege is warranted.
In sum, Fine Kaplan believes that the courts are acting properly under Rule 26(b)(5)(A)
by generally requiring detailed document-by-document privilege logs in order to facilitate a
meaningful analysis of asserted privileges and guard against over-designation. Parties may use
existing tools, such as clawback agreements, to lessen the burden of privilege log preparation.
Amending Rule 26(b)(5)(A) is unnecessary and unwise.
Respectfully submitted,
/s/ Roberta D. Liebenberg
Roberta D. Liebenberg
2
See Pretrial Order No. 53 ¶ 11.3 (ECF 697).
PRIV-0029
From:
To:
Cc:
Subject:
Date:
Attachments:
Drew Ashby
RulesCommittee Secretary
Seth Lowry
Proposed Amendment to Fed. R. Civ. P. 26(b)(5)(A)
Friday, July 23, 2021 5:26:12 PM
Dear Committee,
I represent plaintiffs in serious injury cases. I have been in practice for 14 years; 7.5 of
which were on the defense side. I am writing to encourage the Committee to keep the rule
as is, without an additional allowing for logging documents or data by category.
Thankfully, my experience with categorical logging has been limited to one matter. I say
thankfully because it was a bad experience for everyone involved. Interestingly, categorical
logging in this case came up organically. It was never discussed, but the corporate
defendant chose to go this route anyway. The challenges with this method became quickly
apparent when I wanted to know more about certain documents; particularly
communications that were purportedly protected by the attorney-client privilege. When
meet-and-confers with opposing counsel failed to produce any additional information about
the communications, we noticed a 30(b)(6) deposition to discuss the communications. That
30(b)(6) designee ultimately knew nothing about the communications, or who was on them,
claiming that there were far too many communications for them to testify intelligently about
them. So, after trying numerous different approaches to get the information I needed to
determine whether the asserted privileges were legitimate, I was back at square one; with
nothing, and having wasted months of my client’s discovery window, and having no
additional information despite the substantial time and expense I had spent on the issue.
Frustrated, and with no good options, I filed a Motion to Compel seeking that the
purportedly privileged documents be produced. Keep in mind, I had to do so with virtually
no knowledge about whether the communications were privileged. This was merely my only
tool left, since I could somewhat shift the burden of proving the privilege to the corporate
defendant. When forced to finally do so in front of the Court, the corporate defendant’s
submission confirmed that their claims of privilege were functionally baseless. We won the
privilege fight on over 98% of the challenges that we made.
It’s tempting for anyone reading or hearing this story to believe it a success story. It’s not.
It’s a story of how a broken process forced the plaintiffs to do needless work to obtain what
they were already entitled to. And the defendant likely would have gotten away with it if we
had not pursued the matter so intently. Think of how many lawyers may not have followedup! Like it or not, many parties (plaintiffs and defendants alike, I’m sure) use privilege logs
to hide documents that likely aren’t privileged, but which they want to avoid producing. The
receiving party’s only check against that is the ability to obtain information to determine
whether the privilege is valid. With categorical logging, this will be hampered even more
than it already is.
When you make new rules, or revise old ones, you must always consider the ways in which
the language of the rule (1) can be manipulated by parties who are unscrupulous or who
believe they should push all available boundaries, and (2) creates incentives or disincentives
for certain actions. Given that categorical logging can arguably take less time, any revision
allowing it will automatically make it the norm. Given that it will be easier to hide
documents and data that are not technically privileged among categories in a log, changing
the rule will incentivize this conduct.
Discovery should not be a game of cat and mouse, yet there are already so many broken
parts of the system that allow for it to be as such. Explicitly allowing for categorical logging
would make it worse, and it would disproportionately impact individual plaintiffs whose
counsel does not have the resources afforded to large corporate defendants.
Drew Ashby
The Ashby Firm
445 Franklin Gateway SE · Marietta, GA
30067
404.777.7771
drew@ashbyfirm.com
https://ashbyfirm.com
CONFIDENTIAL PRIVILEGED CONTENT: This message contains information from The Ashby Firm that may be confidential or
privileged. This information is intended only for use of those individuals/entities who are correctly named on the TO, CC and/or BCC
lines above. If you are not one of the above-named recipients, or are (or believe you may be) an unintended recipient, your receipt of this
message was inadvertent and you are not to read, copy, disseminate, or otherwise use this message and/or attachments. If you received
this message in error, please immediately delete the message and its attachments, along with any hard drive copies, and please notify the
sender immediately so that the error may be corrected.
PRIV-0030
PRIV-0031
Law Offices of Howard Friedman, P.C.
PRIV-0032
1309 Beacon Street, Suite 300
Brookline, MA 02446
www.civil-rights-law.com
Telephone
617-742-4100
Fax
617-303-3938
July 26, 2021
Via email: RulesCommittee_Secretary@ao.uscourts.gov
Rebecca A. Womeldorf, Secretary
Committee on Rules of Practice and Procedure
Judicial Conference of the United States
One Columbus Circle NE, Suite 7-300
Washington, DC 20544
Re: Comment on Privilege Log rule changes
Dear Committee on Rules of Practice and Procedure:
I have been practicing civil rights law in Massachusetts for over 40
years. I am deeply concerned about the proposed changes to current privilege
log requirements.
Plaintiffs in civil rights cases rely on documents obtained through
discovery to prove their cases. Defendants frequently respond to discovery
requests with boiler-plate objections that the requests are overbroad and
burdensome, even when the requests are narrowly tailored. Defendants also
frequently claim privileges, sometimes without even providing a privilege log
of documents they have withheld or redactions they have made. I have had
numerous cases where I needed to remind defendants’ counsel to provide a
privilege log and I have had to file motions to compel privilege logs.
Privilege logs are an important tool to promote transparency and
ethical discovery in civil rights cases. The current rule regarding privilege logs,
FRCP26(b)(5)(A), was recently updated to broaden the content of privilege
logs. The rule requires that the party claiming privilege must describe the
documents and other information being withheld in enough detail for the
opposing party to determine whether the claim of privilege is appropriate.
When parties follow this rule, it works. I have received proper privilege logs
that contain enough information to assure me that the withheld information
is, indeed, privileged. I have also received privilege logs that show documents
or information is being improperly withheld. For example, defendants have
claimed attorney-client privilege for an email which was sent to a third party.
Most of the time, I can resolve issues by having a conversation with
defendants’ counsel. Without a proper privilege log, I would not know enough
to begin this conversation.
Without details about what information is being withheld, and if
defendants merely describe “categories” of documents, I would not be able to
tell if documents were improperly designated as privileged. The proposed
changes would make more work for our courts. Vague descriptions of
documents would mean judges would need to view more documents in
camera to determine if they are privileged.
The proposed changes would harm civil rights plaintiffs in an area of
law that already favors government agencies and corporations. I hope the
Committee will not change this rule, which protects transparency and
promotes confidence that all parties are playing fair.
Sincerely,
Howard Friedman
Hf:cgk
2
PRIV-0033
From:
To:
Subject:
Date:
Rob Snyder
RulesCommittee Secretary
Invitation for Comment on Privilege Log Practice
Monday, July 26, 2021 3:37:13 PM
I write to provide comments about the Discovery Subcommittee’s consideration of possible
changes to Federal Rule 26(b)(5). My experience spans representing plaintiffs and defendants
and working in federal court as a judicial law clerk. I am a partner in the Atlanta office of
Butler Wooten & Peak, LLP. My practice is split primarily between representing plaintiffs in
product liability, major personal injury and wrongful death cases, and whistleblower cases
under the federal False Claims Act. About half of my current practice is in federal court.
Before joining my current firm, I primarily represented defendants in business litigation and
securities cases in federal and state court. Before entering private practice, I spent two years
as a judicial law clerk to the Honorable Harold L. Murphy, United States District Court Judge
for the Northern District of Georgia.
I write to urge the Subcommittee not to change Federal Rule 26(b)(5). The Rule in its current
form requires any party, plaintiff or defendant, seeking to withhold documents based on a
privilege to “expressly make the claim” and to “describe the nature of the documents,
communications, or tangible things 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.” Fed. R. Civ. P. 26(b)(5). By requiring parties seeking to withhold documents to
explicitly describe the withheld documents, the Rules provide an efficient and fair procedure
for parties and the court to assess potential claims of privilege.
A detailed privilege log that identifies each document withheld is the best way for parties and
Courts to assess claims of privilege and to make targeted challenges to privilege assertions. A
few recent examples from my practice prove this point. In a recent False Claims Act case
handled by my firm, the Court ordered the defendant Wells Fargo to produce a document that
the company contended were protected by the attorney-client privilege. After we challenged
several claims of privilege made by Wells Fargo, the Court ultimately ruled that one of the
documents were not protected by any privilege because the document was not sent by or to
an attorney. United States ex rel. Bibby v. Wells Fargo Bank, N.A., 165 F. Supp. 3d 1319, 1329
(N.D. Ga. 2015) (rejecting and accepting privilege challenges based on targeted motion to
compel). The document the court ordered produced was related to a Wells Fargo internal
investigation.
In another case, Reichwaldt v. GM, the District Court ruled that a number of documents
identified on GM’s privilege log were not protected by any applicable privileges. Order of
February 10, 2020, Reichwaldt v. GM, Case no. 1:16-cv-02171-TWT, U.S.D.C. N.D. Ga., Dkt. No.
178. The court concluded that the documents were not created by or sent to an attorney but
were instead design documents protected by no applicable privilege.
In both cases, we were only able to make a proper and targeted challenge because the
defendants had provided detailed privilege logs that allowed us to review the claims of
privilege and assess whether the documents on their face appeared to meet the legal
requirement for application of the privilege. If the defendants had simply listed categories of
documents withheld, by saying “documents related to internal investigation” or “documents
related to legal investigation of design defect claims” our ability to challenge the withheld
documents would have been greatly diminished. Faced with a categorical log in our cases, I
feel certain that we would be forced to seek in camera review of all documents withheld by
the defendants in most cases.
I also believe that the claims of those seeking changes to the Rule that privilege logs are
burdensome in large document cases are overblown. Our firm frequently handles cases in
which the defendants produce millions of pages of materials. Not once in my experience has
any defendant contended that providing a document by document privilege log was
excessively burdensome. But if that were the case the Federal Rules already provide several
means for the parties to attempt to reach agreement on any privilege issues before discovery
starts. See, e.g., Fed. R. Civ. P. 26(f)(3)(D) (requiring parties to confer and include in their
discovery plan “any issues about claims of privilege or of protection as trial-preparation
materials.”). Failing agreement, the court can resolve disputes about privilege logs before
discovery starts. Id. Recently, reaching agreement about the format of privilege logs has
become part of our discussion of ESI protocols in our initial planning conferences. In a recent
federal court ESI protocol I worked on we reached an express agreement that any party
seeking to withhold documents based on a privilege would provide a log separately setting
forth for every document withheld: the nature of the privilege, the type of document; the
authors; the date; the general subject matter; the Bates number; and any other information
required by the Local Rules or the Federal Rules. See Agreed ESI Protocol, Winston Hencely v.
Fluor Corporation, et al., U.S.D.C. D. S.C., Case No. 6:19-cv-00489-BHH, Dkt. No. 35-1. We
reached that agreement during the initial planning conference.
In addition, the meet and confer and initial planning conference process in federal court is
sufficient to handle any request by a party that express categories be excluded from logging.
It is not my experience that parties request that their opponents provide a log that lists
communications with outside counsel or outside counsel’s work product related to the case.
My firm’s form instructions for discovery requests expressly state that the receiving party
need not log communications with outside counsel or any work-product related to the case. If
a party insisted on such documents being logged, it is my strong suspicion that, barring any
indication of the crime-fraud exception, any federal judge would look on that request with
great skepticism since those documents are shielded from discovery in the vast majority of
cases.
Finally, to the extent that those seeking changes to the Rule claim that a fear about waiver is
what drives the need for burdensome logging, that concern is also greatly overblown. Initially,
the Rules already provide an express claw back mechanism that allows parties to retrieve
documents that are produced inadvertently. The Wells Fargo order referenced above came
about after Wells Fargo clawed back documents it contended were inadvertently produced.
The Court ultimately agreed with Wells Fargo that those documents were shielded from
protection. United States ex rel. Bibby, 165 F. Supp. 3d 1319, 1328. But aside from any claw
back issues, it is not my experience that federal judges are quick to find a waiver of privilege
even in those instances where a party produces no privilege log at all. Instead, in my
experience federal judges are far more likely to first order a party to produce a compliant
privilege log, and it is only when a party fails to comply with an order to produce a log that the
court considers ordering production of the materials. In my experience, courts are very
hesitant to find a waiver of any privilege.
I respectfully request that the Committee leave Rule 26(b)(5) as it is currently written.
Rob Snyder
Butler Wooten & Peak LLP
Atlanta Office
2719 Buford Highway
Atlanta, GA 30324
Office: 404-321-1700
Fax: 404-321-1713
Columbus Office
105 13th Street
Columbus, GA 31901
Mail: P.O. Box 2766
Columbus, GA 31902
Office: 706-322-1990
Fax: 706-323-2962
Savannah Office
The Realty Building, Suite 1000
24 Drayton Street
Savannah, GA 31401
Office: 912-443-4036
Fax: 706-323-2962
PRIV-0034
July 27, 2021
Re:
Judicial Conference Advisory Committee on Rule 26(b)(5)(A)
Dear Rules Committee,
My name is Matthew Sims and I am a partner at Rapoport Weisberg & Sims, P.C., a
small law firm located in Chicago that represents plaintiffs in catastrophic and complex matters,
such as aviation disasters, industrial explosions, product liability cases, trucking accidents,
pharmaceutical cases, medical devices, and medical malpractice. I personally focus my practice
extensively on product liability cases and my practice takes me to courthouses throughout the
country, both state and federal. Oftentimes, our work has us litigating against well-known
corporations, such as Boeing, Honeywell, Johnson & Johnson, John Deere, Lycoming,
Bridgestone, Medtronic, and many other common household names.
I write today to provide my input on the proposed changes to Rule 26(b)(5)(A)
concerning privilege log requirements. In document intensive cases – such as product liability
cases – claims of privilege are omnipresent. Already, far too much is shielded from the public
regarding the nature and legal consequences of wrongful conduct, which should be publicly
known.
Writing for the Supreme Court of the United States in 1966, Justice Clark observed: “The
principle that justice cannot survive behind walls of silence has long been reflected in the 'Anglo
American distrust for secret trials.”
More broadly, President John F. Kennedy once explained: “The very word ‘secrecy’ is
repugnant in a free and open society; and we are as a people inherently and historically opposed
to secret societies, to secret oaths and to secret proceedings. We decided long ago that the
dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers
which are cited to justify it.”
Allowing sweeping categorizations of privilege logs will only continue to undermine the
basic American principle that our courts serve not just private litigants, but the public as a whole.
It has been my experience that defendants routinely assert claims of privilege and
confidentiality as a reason to withhold information and documents. Invariably, when we pursue
and succeed on a challenge to privilege, we find damning documents of the highest order that
were improperly withheld. Already under the current rule, a cat-and-mouse game seems to exist
where great efforts are expended trying to conceal the most relevant documents through what are
often specious claims and legal hair-splitting, many times involving improperly invoked claims
of privilege. The proposal to the rules will only serve to worsen this scenario.
Claims of privilege are, and must be, qualitative, meaning that a trained attorney should
have looked at a document and made a subjective call on whether a document satisfies a claim of
privilege, and then, if so, whether any exception may apply (e.g. waiver, crime-fraud, etc.). If a
document must go through this process for the assertion of privilege to occur, then the minimal
amount of time-savings from permitting wide-categorization of categories of documents is
hardly worth the temptation for pervasive and wide-spread abuse that will come with categorical
assertions of privilege. In simpler terms, if an attorney is necessarily assessing whether the
components exist to claim privilege, that attorney has already consciously looked at everything
that would need to go into a privilege log anyways.
As such, I strongly oppose any rule changes that will eliminate a need for document-bydocument listing, or otherwise permits a litigant to sweepingly claim broad categories of
documents under claims of privilege. While some may argue the proposed rule change may
potentially advance the “speedy and inexpensive determination1” of actions, those considerations
should not take precedence over the necessarily “just” determination of actions.
Thank you for your time and consideration of these comments. Please feel free to contact
me if you want any further input in this matter.
Very truly yours,
Matthew S. Sims
1
Arguably, the rule change would be counterproductive in the speedy or inexpensive determination of
actions, as it will undoubtedly require significantly more “meeting and conferring” in order to determine
which documents exist within any given category of documents.
2
PRIV-0035
Jacobs&
Crumplar, PA.
Attorneys at Law
750 Shipyard Drive,St.200
Wilmington, DE 19801
(302) 656-5445
28412 DuPont Blvd.,St.104
Millsboro, DE 19966
(302) 934-1234
www.jcdelaw.com
July 25, 2021
Judicial Conference Advisory Committee on Civil Rules
RulesCommittee_Secretary@ao.uscourts.gov
Dear Rules Committee,
I write regarding current Rule 26(b)(5)(A). I represent plaintiffs in a variety of asbestos, employment,
civil rights and personal injury actions in Delaware. Our rules of civil procedure in state court are modeled
after the federal rules.
Privilege log disputes have tended to arise in larger cases such as asbestos cases where the
Defendant is a large corporation with many documents and the request for production spans a long length
of time. In my experience parties have been able to resolve issues themselves and judicial involvement not
necessary.
I think that requiring categories of documents rather than a document by document description of
each document would increase judicial intervention because parties would be more likely to ask the Judge
for in camera reviews.
In my opinion no changes are needed and parties have worked to get issues resolved without
judicial intervention.
Very truly yours,
/s/Raeann Warner
Raeann Warner
PRIV-0036
July 26, 2021
VIA E-MAIL
RulesCommittee_Secretary@ao.uscourts.gov
RE:
proposed rule change relating to difficulties in complying with Rule 26(b)(5)(A)
To the Committee,
We have not experienced difficulties in complying with Rule 26(b)(5)(A). We are a small firm
practicing mainly litigation representing individuals who have been injured, insurance
policyholders, consumers, and small businesses. We handle both smaller, simple cases and some
large document cases, including class actions.
The biggest problems we see in connection with the claiming of privilege are the over-claiming of
privilege and the failure to provide sufficient information in a privilege log to make a determination
as to whether something is privileged or not. In cases involving a large number of documents,
candor and full disclosure of withheld documents is very important because in these cases the
likelihood is reduced that withheld documents would otherwise come to light, for instance through
the taking of depositions. We do not see a need for an lessening of the current rule.
.
Very Truly Yours,
s/ F Inge Johnstone
F. Inge Johnstone
2204 Lakeshore Drive · Suite 303 · Birmingham, Alabama 35209 · T: (205) 383-1809 · F: (888) 759-3882
www.johnstonecarroll.com
PRIV-0037
LEVIN SEDRAN & BERMAN LLP
~ac~ama/9"~;,,~
ARNOLD LEVIN
LAURENCE S. BERMAN
FREDERICKS. LONGER*
DANIEL C. LEVIN
510 WALNlJf STREET
SUITE 500
PIDLADELPHIA, PA 19106-3697
CHARLES E. SCHAFFER
AUSTIN B. COHEN*
TELEPHONE (215) 592-1500
FACSIMILE (215) 592-4663
OFCOlJNSEL:
HOWARD J. SEDRAN
SANDRA L. DUGGAN
RAYMONDP. FORCENO
MICHAEL M. WEINKOWITZ*+
KEITH J. VERRIER*
DAVID C. MAGAGNA, JR.•
NICHOLAS J. ELlA
ZACHARY WINKLER
*also admitted in New Jersey
•aJso admitted in New York
July 27, 2021
VIA E-MAIL: RulesCommittee_ Secretary@ao.uscourts.gov
MEMBERS OF THE JUDICIAL CONFERENCE
ADVISORY COMMITTEE ON CIVIL RULES
Re: Fed. R. Civ. P. 26(b)(5)(A)-Privilege Logs
To the Members of the Advisory Committee on Civil Rules:
I have been lawyering since 1986, mostly representing plaintiffs in cases involving
pharmaceutical, medical device or product liability multidistrict litigations. Many changes have
occurred in federal practice since I graduated law school. One of the biggest changes in my
practice involves notice pleading. When I first started, I never considered Conley v. Gibson to be
controversial until the Supreme Court read a plausibility standard into the text of Rule 8. Now,
some judges are erroneously saying that federal court is a fact pleading system. Many other
changes have occurred over time as documented by the then reporter to the Federal Rules
Advisory Committee, Professor Arthur Miller, in his article Are the Federal Courthouse Doors
Closing? What's Happened to the Federal Rules ofCivil Procedure? 43 Tex. Tech. L. Rev. 587
(2010-2011).
But one of the bedrock principles that I learned in law school was that that the attorney
client privilege is sacrosanct because we want to encourage candid truthful communications of
clients seeking legal advice from their counsel. I also learned though that the attorney client
privilege is an exception to the general rule that the law is entitled to every man's evidence. As
an exception to the rule, it is to be construed narrowly and the burden of demonstrating the
applicability of the privilege rests on the party who invokes it. These principles should be
immutable.
July 27, 2021
Page2
In my experience, many lawyers misunderstand or misapply the privilege, if they do not
outright abuse its assertion in discovery proceedings. The notion that this Committee is
considering relaxing the standard by which privilege logs are ordinarily drafted to countenance
the use of categorizing documents withheld as privilege invites mischief, if not abuse. I disagree
with any such change to Rule 26(b)(5)(A). Only through detailed document-by-document
privilege logs are opposing counsel able to divine even the barest of understandings of
documents whose content it is the job of well-heeled lawyers to purposely obscure in a privilege
log, often because the content of their client's documents is incriminating. Examples abound
where counsel have attempted to attribute to a relevant and discoverable document attorney
client privilege status through false or improperly applied criteria. The only means to hold in
check the ability of opposing counsel to abuse the assertion of the privilege is to require
fundamental information in a detailed privilege log.
Vioxx Products Liability Litigation, MDL 1657 (E.D. La.), provides an excellent example
to demonstrate the on-going need for a document-by-document privilege log. In that case,
Merck was represented by several nationally prominent law firms. It produced over 2.3 million
documents and a separate privilege log listing 30,000 documents. Plaintiffs challenged the
adequacy of the privilege log. In response, the district court ordered all 30,000 documents
designated as privileged to be produced for in camera inspection. Incredibly, after an exhaustive
personal inspection, the court found only 491 of the 30,000 documents to be privileged Gust
under a 99% reporting error) and ordered the improperly designated documents to be produced.
Some of the documents that were claimed privileged included promotional overviews, press
releases, studies already in evidence, sales meetings, etc. Merck sought mandamus review at the
Fifth Circuit. Although it denied the petition, the circuit court gave instructions suggesting that a
different review protocol be employed Vioxx Prod. Liab. Litig. Steering Comm. v. Merck &
Co., Inc., No. 06-30378, 2006 WL 1726675 (5th Cir. May 26, 2006). Adhering to the Court of
Appeal's advice, the district court appointed Professor Paul R. Rice as a special master to
evaluate the privilege dispute. Professor Rice evaluated a representative sample of 2,000
documents and again found widespread overuse of the privilege. He pointed out that the
privilege is only designed to protect communications seeking and rendering legal advice, that
legal advice must be the primary purpose of the communication, that when the role of legal
counsel changes from legal advisor to corporate decision-maker, the privilege ends. He also
noted that "[s]imply because technology has made it possible to physically link ... separate
communications does not justify them as one communication and denying the demanding party a
fair opportunity to evaluate privilege claims raised by the producing party." In re Vioxx Prod
Liab. Litig., 501 F.Supp.2d 789, 804 (E.D. La. 2007). In so doing, Professor Rice criticized as
both "inappropriate and unfair" privilege logs that categorize documents or allow email strings
(not individual emails) to be identified. Id. at 812, fn. 33. The district court adopted this
reasoning.
July 27, 2021
Page 3
Other courts agree that categorical logging is inadequate because the logs are not
"sufficiently articulated to permit the opposing party to assess the claims of privilege or work
product protection." Companion Property and Casualty Ins. Co. v. US. Bank Nat'! Ass 'n., 2016
WL 6539344 (D.S.C. Nov. 3, 2016). By requiring each document to be separately logged,
whole swaths or categories of documents cannot be swept under the privilege log rug. In this
sense, the Fifth Circuit was prescient regarding this Committee's current consideration of
categorization: "Traditional procedural protections are not limitlessly malleable. If staying within
those traditional constraints takes more time than jumping their traces, that is not justification for
doing so. The time it takes is the time it takes." Vioxx Prod. Liab. Litig. Steering Comm., 2006
WL 1726675, at *3.
I ask that the Committee maintain the integrity of Rule 26(b)(5)(A) as is. Justice
Brandeis's adage that electric sunlight is the greatest disinfectant still holds true. Changing the
Rule to limit the wattage to that of a dimly lit bulb is not aligned with the basic principles of our
system of justice.
/mmh
PRIV-0038
Douglas McNamara
Partner
Cohen Milstein Sellers & Toll, PLLC
dmcnamara@cohenmilstein.com
July 27, 2021
Via Email Only
Judicial Conference of the United States
Advisory Committee on Civil Rules
Washington, DC 20544
RulesCommittee_Secretary@ao.uscourts.gov.
Re:
Comment on Potential Change to Rule 26(b)(5)(A) on Privilege Log
Practices
Dear Members of the Committee:
I write at your invitation for comment regarding privilege log practice and a suggestion to
amend Fed. R. Civ. P. 26(b)(5)(A), including the possibility of categorical logging. I have spent
23 years in civil litigation, starting as an associate at a large defense firm, and as a partner in a
plaintiffs’-side class action firm. In my experience, clear rules on privilege logging aid in
efficiency and fairness, while categorical logging does not save resources, creates additional
disputes, and facilitates the broad withholding of relevant non-privileged documents.
Nearly all the cases I am involved with constitute the kind of “large document” cases
described
in
the
invitation
to
comment.
See,
https://www.uscourts.gov/sites/default/files/invitation_for_comment_on_privilege_log_practice_
0.pdf at 2. In my cases, a document-by-document listing on privilege logs is routinely required.
For example, the District of Maryland has local practice guidelines appended to it local rules that
set out what a privilege log should contain:
(i) the type of document; (ii) the general subject matter of the document;
(iii) the date of the document; and (iv) such other information as is sufficient
to identify the document, including, where appropriate, the author,
addressee, custodian, and any other recipient of the document, and, where
not apparent, the relationship of the author, addressee, custodian, and any
other recipient to each other.
1
2838593 v1
July 27, 2021
Page 2
See https://www.mdd.uscourts.gov/sites/mdd/files/LocalRules.pdf at App. A, p. 120. Judge Waxse
set out another classic and useful template for adequate privilege logs almost 20 years ago. The
log must provide: 1) a description of the document; 2) the general subject matter of the document;
3) the date of the document; 4) the author of the document, whom s/he works for, their title and
whether they are counsel; 5) each recipient of the document, their employer, titles, and whether
they are counsel; 6) the purpose of preparing the document; 7) the number of pages of the
document; 8) the specific basis for withholding the document; and 9) any other pertinent
information necessary to establish the elements of the asserted privilege. Hill v. McHenry, 2002
U.S. Dist. LEXIS 6637, at *6, 8 (D. Kan. Apr. 10, 2002). See also Ruran v. Beth El Temple of West
Hartford, Inc., 226 F.R.D. 165, 168-69 (D. Conn. 2005). This kind of guidance avoids boilerplate
entries and allows the receiving party to reasonably assess assertions of attorney-client privilege
or attorney work product claims, saving the court and litigants time and resources.
Concerns about the costs or diversion of time to create these logs are diminished due to the
claw back rights in Fed. R. Evid. 502(d). The producing party can produce first and then claw back
and create logs as needed. Further, in large document cases producing parties can run search terms
through the electronically stored information to capture documents with counsel’s names, or
“privilege”, as well as to de-duplicate and thread emails, making it easier to automate these logs.
Further, legitimately privileged documents usually comprise only a small number of responsive
documents.
I have also been involved in ligation where categorical logging was attempted and found it
inefficient and ineffective. In in re Marriott International Customer Data Sec. Breach Litig., MDL
No., 19-md-2870, the parties have been aided by retired Magistrate Judge John Facciola as a
Special Master. Judge Facciola has written on the topic of categorical logging. “Asserting and
Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework,” The
Federal Courts Review, Vo. 4, No. 1 (2009). The parties met and conferred on categorical logging
for months, unable to agree on the scope and descriptions. After months of disagreement on how
the categories should be defined, Special Master Facciola suggested the parties just proceed with
traditional logging. Between March and July of 2021—supposedly after the bulk of documents
had been produced and several depositions had already been taken—Marriott produced over
13,000 “de-privileged” documents. These included incident timelines, risk assessments, and nonlawyer emails that Plaintiffs relied on in their recently filed class certification brief. These
documents would have likely remained unproduced, having fallen within the broad categories
suggested for logging. The late production necessitated creativity between the parties through
interrogatories or 30(b)(6) depositions, to avoid re-depositions. The experience convinced me that
categorical logging only complicates discovery in already complex cases, pushing potential
privilege fights to the end. Worse, if there are not honest adversaries or a diligent special master
or magistrate judge, materials may be wrongly shielded, with little chance that the receiving party
can discover misassigned privileges.
July 27, 2021
Page 3
Categorical logging would likely only add further opacity to the discovery process, invite
satellite litigation on privilege, and sew further suspicions in large-stakes cases. Instead, to
improve federal practice, preempt fights about the sufficiency of privilege logs, and ensure those
creating logs seriously assess the bona fides of a claimed privilege, I suggest the Committee
incorporate the District of Maryland’s guidance cited herein.
Thank you for this opportunity to comment on this important topic.
Sincerely,
__________________________
Douglas J. McNamara
PRIV-0039
Stephanie A. Walters
walters@stuevesiegel.com
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Phone: (816) 714-7184
Fax: (816) 714-7101
July 27, 2021
Via E-Mail: RulesCommittee_Secretary@ao.uscourts.gov
MEMBERS OF THE JUDICIAL CONFERENCE
ADVISORY COMMITTEE ON CIVIL RULES
Re:
F.R.C.P. 26(b)(5)(A) – Privilege Logs
To the Members of the Advisory Committee on Civil Rules:
I serve as E-Discovery Counsel at Stueve Siegel Hanson LLP, a 30-attorney law firm based
in Kansas City, Missouri that primarily represents plaintiffs in complex litigation, including
businesses, individuals, and class action representatives. My electronic discovery practice
includes negotiating privilege log agreements and assessing and challenging the adequacy of
privilege logs in privacy and consumer class action litigation in state and federal courts across the
country.
I write this letter to strongly encourage the members of the Judicial Conference Advisory
Committee on Civil Rules to leave Fed. R. Civ. P. 26(b)(5)(A) (“the Rule”) unchanged. The Rule
currently requires parties claiming privilege to provide information sufficient for the requesting
party to assess, and if necessary, challenge the asserted privilege of withheld information. In many
of the federal cases my firm has litigated, the Rule has served to protect my clients against frequent
unjustified assertions of privilege by defendants attempting to avoid disclosure of important and
relevant information and documents.
My firm litigates privacy and consumer class action cases against large corporations with
attorney-employees who serve in a business capacity. Business communications are frequently
sent and received by employees with law degrees who work in business positions where legal
advice is not requested or provided to non-attorney employees. My firm has successfully
challenged parties who have withheld such communications on the basis of attorney-client
privilege. Had Fed. R. Civ. P. 26(b)(5)(A) not required these parties to provide document-bydocument logging of documents being withheld on the basis of privilege, we would not have been
able to assess and successfully challenge these unfounded privilege assertions. Documents
produced by the withholding party after a successful privilege challenge have often been critical
to proving our client’s case.
Stephanie A. Walters | (816) 714-7184 | walters@stuevesi
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