March 30, 2018 Practice Points

Non-Prejudicial Delay in Producing Privilege Log Not a Waiver of Applicable Privileges

Acting in good faith and with a reasonable degree of diligence in seeking to comply with your discovery obligations under the Federal Rules of Civil Procedure is crucial to avoiding potential sanctions or other unfavorable results.

By Robert J. Will

The hazards of an untimely submission of a privilege log were avoided in Center for Individual Rights v. Chevaldina, 2017 WL 5905191, Slip Op. (S.D.Fla. Nov. 29, 2017). In this fee dispute between a legal-services organization and its client, the plaintiff issued a Rule 45 records subpoena to another law firm that represented the client. The nonparty law firm objected to the subpoena, after which negotiations with plaintiff resulted in an agreement on the scope of documents to be produced. The client then instructed the non-party law firm not to produce any documents, whereupon the plaintiff filed a motion to compel and for sanctions.

The court determined that the documents sought were relevant to the fee dispute. It also concluded that a number of the “boilerplate, non-specific and repetitive objections” the law firm asserted were insufficient under the Federal Rules of Civil Procedure. Because neither the documents nor a privilege log were produced, the plaintiff argued that all privileges associated with the documents should be deemed waived. Describing that sanction as a harsh remedy, the court determined that the delay in submitting a privilege log was not sufficient to cause prejudice to the plaintiff. Instead, the court ordered the nonparty recipient of the subpoena to immediately produce all responsive, non-privileged documents in its possession, custody, and control, but granted the non-party an additional 30 days to submit specific objections and a privilege log indicating the grounds for withholding any remaining responsive and relevant documents.

Still, rather than treating the defective objections as a wholesale waiver of any objection, the court ordered the nonparty to supplement those objections with additional specificity. The court further held that while the subpoenaed law firm should have provided a detailed privilege log along with its objections to production of documents in response to the subpoena, its failure to do so did not merit a sanction of waiver of attorney-client or attorney work-product privileges for the withheld documents, as the plaintiff failed to show prejudice arising from the roughly six-week delay in receiving a privilege log.

The court held that the privilege log should specify the following for each document being withheld: (1) name and job title or capacity of document author; (2) name and job title or capacity of each document recipient; (3) date document prepared and, if different, date shared with persons other than author; (4) title and description of document; (5) subject matter addressed in document; (6) purpose(s) for which document was prepared/created; and (7) specific basis for privilege claimed.

The apparent leniency with which the court dealt with the discovery infractions here was probably the result of several factors: (1) the fact that the target of the subpoena was a nonparty to the lawsuit; (2) the fact that the nonparty engaged in good-faith negotiations with the plaintiff over the scope of production and objections to the requested documents, but was later prohibited by its client (the defendant) from honoring the agreement; and (3) the lack of demonstrable prejudice to the plaintiff resulting from the delay in production of a privilege log and defects in format of objections.

While the result appears reasonable and appropriate under the circumstances in this case, one could easily contemplate a different result given just one or two slight changes in the facts leading up to the motion. Thus, whether you represent a part or nonparty that has been requested to produce documents, lessons to be learned from this opinion are (1) make specific and detailed objections to any document request you intend to challenge in a timely manner, (2) avoid boilerplate, repetitive and non-specific objections (which are unacceptable under the Federal Rules of Civil Procedure), and (3) prepare a detailed privilege log for each document you intend to withhold from production on grounds of attorney-client, attorney work-product, or other applicable privileges, also in a timely manner.

Acting in good faith and with a reasonable degree of diligence in seeking to comply with your discovery obligations under the Federal Rules of Civil Procedure is crucial to avoiding potential sanctions or other unfavorable results. The timeliness of compliance with those obligations is often determined on a case-by-case basis depending on many factors, including the breadth and volume of documents requested and the nature of objections and privileges being asserted.


Robert J. Will is a member of Lewis Rice LLC, St. Louis, Missouri.


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