When is Failure to Provide a Timely Privilege Log Excusable?

In Melton Properties, LLC v. Ill. Central R. Co., 2024 WL 3015749 at *5 (N.D. Miss. June 14, 2024), the court listed the factors to consider in deciding when the failure to provide a timely privilege log is – or is not – a waiver of the privilege.

GENERALLY,

FAILURE TO TIMELY PROVIDE A PRIVILEGE LOG

MAY WAIVE PRIVILEGE

It is well established that privilege may be waived if it was not timely asserted in a proper log.  See, e.g.,  Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024).

For example:  “Absent consent of the adverse party, or a Court order, a privilege log (or other communication of sufficient information for the parties to be able to determine whether the privilege applies) must accompany a written response to a Rule 34 document production request, and a failure to do so may constitute a forfeiture of any claims of privilege.”  Mezu v. Morgan State Univ., 269 F.R.D. 565, 577 (D. Md. 2010)(emphasis added); see, e.g., Court Excused Party From Waiver by Failure to Provide Specific Objections (Aug. 7, 2022).

In Bautech USA, Inc. v. Resolve Equip., Inc., 2024 WL 1929486 (S.D. Fla. May 2, 2024), privilege was waived because of untimely privilege logging.

THE MELTON FACTORS

In Melton, 2024 WL 3015749, at *5, the court recognized the general rule: “[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived….  Furthermore, even when privilege objections are timely asserted, the failure to produce a proper privilege log generally constitutes waiver of the privilege objections.” [emphasis added].

The Melton court then listed the countervailing factors, writing:

On the other hand, Federal Rule 33(b)(4) provides that “[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” (emphasis added). “In deciding whether good cause exists, courts consider (1) the length of the delay in failing to object; (2) the reason for the delay; (3) whether there was any bad faith or dilatory action of the party that failed to object; (4) whether the party seeking discovery was prejudiced by the failure; (5) whether the document production request was properly framed and not excessively burdensome; and (6) whether waiver would impose an excessively harsh result on the defaulting party.”

Id. (citation omitted).

APPLICATION IN MELTON

In Melton, plaintiffs sought attorneys’ fees totaling $979,705.03, and defendant wanted production of itemized attorneys’ bills.

Defendants’ expert reported “that he was unable to fully evaluate [plaintiffs’ accountant’s expert] opinions related to Plaintiffs’ ‘attorney bills’ because he was ‘unable to ascertain hours and rates billed, what tasks were performed and how the tasks pertain to this litigation’ due to not having access to the itemized billing statements.”

Plaintiffs took the position that the discovery requests did not ask for the bills and, in any event, they were privileged.  Defendant took the position that plaintiffs had failed to assert privilege in an objection to the discovery.

The court held that one interrogatory failed to request production of the bills. Id. at *5.  Another “could be construed” to request them; however, it violated Fed.R.Civ.P. 34(b) because it was vague and over broad. Id.

The court also wrote that plaintiffs’ “blanket” privilege assertion in opposition to the motion was improper.  Id. at *6.  The “entire circumstance” was “further complicated” because a party who was an attorney provided detailed time entries.  Id.

The court wrote:

In short, I find it inescapable to conclude anything but, under these circumstances, both Plaintiffs and Defendant have contributed to the current last minute discovery morass.

It then weighed the listed factors. It ordered production of time entries not subject to a privilege, and that: “Any matters as to which privilege is claimed shall be recorded in a privilege log pursuant to FRCP 26(b)(5) and Local Civil Rule 26(e).”

In short, faced with a “morass,” where the discovery requests were less than clear, and perhaps under factors such as “whether the document production request was properly framed and not excessively burdensome,” “the reason for the delay,” and, “whether there was any bad faith or dilatory action of the party that failed to object,” on the facts presented, good cause had been shown to excuse the absence of a timely privilege log.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE – June 29, 2024: Hipschman v. Co. of San Diego, 2024 WL3206909 (S.D. Cal. June 26, 2024)(“The Court finds that the County has not waived any applicable privileges due to its failure to serve a privilege log. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. Of Mont., 408 F.3d 1142, 1147-48 (9th Cir. 2005) (rejecting ‘a per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34’s 30–day time limit’ and finding that district courts ‘should make a case-by-case determination’ after considering the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged, the timeliness of the objection and accompanying information about the withheld documents, the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy or unusually hard.”(emphasis added).

UPDATE: In The Consequences of a Bad or Tardy Privilege Log | McGuireWoods LLP – JDSupra (July 5, 2024), Thomas Spahn wrote a blog about Bautech stating:

Acknowledging that a privilege log lapse should not trigger a privilege waiver “when the opposing party has suffered no prejudice,” the court found that harsh sanction appropriate in this instance. Id. at *7. As the court explained, the third party defendant’s two month delay “has left the parties and the Court little time to resolve an assertion of privilege” as upcoming discovery deadlines loomed. Id. at *7-8.

UPDATE: Athletics Investment Grp., LLC v. Schnitzer Steel Indust., Inc., 2024 WL 3916100, at *7 (N.D. Ca. Aug. 23, 2024).

Failure to produce a timely privilege log may result in waiver. See Burlington, 408 F.3d at 1149. The Ninth Circuit has expressly rejected “a per se rule that failure to produce a privilege log in a timely manner triggers waiver of privileges.” Id. at 1147. Instead, it instructs courts to make waiver determinations on a “case-by-case determination” and to consider the following factors: 1) “the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged”; 2) “the timeliness of the objection and accompanying information about the withheld documents”; 3) “the magnitude of the document production”; and 4) “other particular circumstances of the litigation that make responding to discovery unusually easy … or unusually hard.” Id. at 1149. The Ninth Circuit has explained that “these factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process.” Id. Although waiver is a harsh sanction, courts have not hesitated to find waiver where a party repeatedly engages in inexcusable or unjustifiable conduct.