When is a Categorical Privilege Log Insufficient?

In U.S. ex rel. Zafirov v. Physician Partners, LLC, 2024 WL 2846007 (M.D. Fla. June 2, 2024), the court held that a categorical privilege log was insufficient, even after an apparent agreement to that logging process.

The role of a privilege log is to “trust, but verify.”  In other words, “play, but cut the cards.”[1]

I have long been in favor of categorical privilege logs, when they are appropriate, as one tool in a litigator’s toolkit.  They can be valid and save time and money. See Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021);  Categorical Privilege Log Presented Interpretive Issues (Nov. 17, 2021).  In short, when it comes to privilege logging, proportionality principles should apply.  M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), 355-58.

Two common issues presented by categorical logs are: “when are they appropriate”; and, how should categories be defined?[2]

In Zafirov, a physician/plaintiff/relator brought a qui tam action against a former employer/health care provider and others.  The core allegation involved alleged fraudulent Medicare claims.

Two defendants sought discovery of communications between the plaintiff and the government.  Plaintiff objected, asserting attorney-client privilege, joint prosecution privilege, common interest privilege, and the attorney work-product doctrine.  Zafirov, 2024 WL 2846007, at *2.

Over several months, the parties conferred about, among other things, “a privilege log with details sufficient to enable Defendants to evaluate Relator’s privilege claims.”  Id. at *2.

The court wrote that plaintiff “agreed” to “provide a privilege log which only categorically logs all common interest privileged communications, by identifying the date range of such communications, the date that the prefiling disclosure was made to the Government, and the date that any written disclosure was provided to the Government….” Id.  Plaintiff also agreed to produce non-work product and some other documents.  The form of the agreement – written or oral, for example – is not described.

However, plaintiff produced a privilege log with only one entry that stated:

Communications and work product shared between the United States and Relator and her counsel from the oral pre-filing disclosure on May 16, 2019 through the present, including without limitation the July 10, 2019 Written Disclosure Statement and any privileged or work product attachments. All other underlying documents (such as records generated by Defendants or third parties) have been produced.

Defendant moved to compel.  The court noted that the party invoking privilege has the burden of proof and that privileges are construed narrowly.  It wrote that the withholding party must describe what is withheld, provide sufficient information to establish the privilege,  and the court recited the standard elements of a detailed log.  Id. at *3.  It then wrote:

There is no question that Relator’s privilege log fails to meet these requirements. As set forth above, the privilege log contains one entry that merely references the fact that Relator is withholding her privileged communications with the Government. As the parties each acknowledge, however, courts have permitted more sparse or categorical privilege logs in certain situations.

Id. at *3 (emphasis added).

The court then wrote that categorical logs need to sufficiently articulate categories that permit the opponent to assess the claims of privilege and a party need not “sacrifice work product protection in order to assert it….”  Id.

Defendants asserted that plaintiff’s description was conclusory and did not “sufficiently articulate[]” the basis of the privileges.  They asserted that privilege challenges would turn on specifics, such as the date of the communication, parties to the communication, and the purpose and content. Id. at *4.  One may ask why, in that case, there was agreement to a categorical log?

In response, plaintiff asserted that communications with her attorney and with the government were privileged or work product. Plaintiff also argued “that a detailed privilege log is not appropriate in this case because the descriptive information will not help Defendants in their assessment of whether the documents are privileged.”  Id. at *4.  She argued “that the descriptive information in a standard privilege log is itself privileged in this case….  In particular, Relator states that the exact dates of certain discussions and the timing of various investigative and litigation decisions (for example, patterns of increase or decrease in communications) could reveal things that the Government attorneys considered more or less significant, and a party’s opinion as to the significance of specific facts is core opinion work product.”  Id. at * 5.

However, the court determined that the categorical privilege log was insufficient. Id. at *5. It described the log as merely referencing the fact that plaintiff is withholding privileged communications with the government. Id. at *3.

While the Court has no reason to question Relator’s representation that only privileged documents have been withheld, the very purpose of a privilege log is to provide the opposing party an opportunity to assess the claim of privilege. [emphasis added].

In other words, “trust, but verify.” The court continued:

Relator’s categorical privilege log does not provide Defendants with a fair opportunity to make this assessment.  And Relator has not pointed the Court to a single case in which a qui tam relator was excused from preparing a privilege log or permitted to serve a privilege log similar to the one at issue in this case. Indeed, courts generally come to the opposite conclusion.

The court added:

The Court is also not persuaded that the standard descriptive information contained in a privilege log is itself protected work product in this case. Regardless, in an abundance of caution, the Court will permit Relator to list items on her privilege log by month, instead of by specific date. [emphasis added].

It ordered:

Accordingly, Relator shall prepare and serve an updated privilege log which lists documents withheld on the basis of privilege with the following information: (1) the author(s) of the document or correspondence; (2) the recipient(s) of the document or correspondence; (3) the month the document was prepared and sent or shared with persons other than the author; (4) the general description of the document or correspondence; (5) the general subject matter addressed in the document or correspondence; (6) the purpose for which the document was prepared or communicated; and (7) the specific basis for the claim that it is privileged.

Importantly, the court emphasized the fact-specific nature of its holding: “In reaching this conclusion, the Court does not suggest that categorial privilege logs are never appropriate, only that the categorical privilege log prepared by Relator in this case is insufficient.”  Id. at n. 3 (emphasis added).

One thing that I found missing is a discussion of the parties’ agreement.  On page *2, the court wrote that the parties conferred over months about the details to be included in a privilege log.  It also wrote that: “Relator has since agreed to (1) provide a privilege log which only categorically logs all common interest privileged communications, by identifying the date range of such communications, the date that the prefiling disclosure was made to the Government, and the date that any written disclosure was provided to the Government….” [emphasis added].

The form of the agreement is not described.  Was it oral or written?  In an ESI Protocol or discovery plan?  Judicially approved or contractual?  Unilateral or mutual? Confirmed or disputed?

If there was an agreement between the parties, it seems to me that the analysis should have been whether the plaintiff performed as agreed.  If plaintiff performed, the agreement should have been enforced.

However, it seems from the conclusory log described in the decision that the plaintiff may not have performed.  That seems to be what the court determined.  That failure would justify the remedial order.

If there was good cause to do so, plaintiff could have sought to modify the agreement before serving the log.  See The ESI Protocol: Your Word is Your Bond… Or, Is It? (Jan. 11, 2024); StubHub: Modification of ESI Protocol and Denial of Sanctions – Performance Was Impossible (May 23, 2024); Should an ESI Protocol Be Incorporated Into a Court Order? (Mar. 13, 2023);  Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II) (Nov. 11, 2022).

There is a need for flexibility and innovative privilege logs should, when appropriate on the facts or by agreement in a Rule 26(f) conference of the parties, be encouraged.  Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024).

____

[1] See Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”  (Mar. 4, 2024).

[2] Defining categories may be difficult.  See, e.g., Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”