Fiskars II:  Vague Challenge to Privilege Log Entries Deemed Defective

I blogged about an earlier decision in Fiskars in Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024).  There, plaintiff Fiskars’ motion to compel source code was denied as untimely.

In a subsequent decision, defendant Woodland’s challenge to Fiskars’ privilege log was defective.  Fiskars Finland OY AB v. Woodland Tools, Inc., 2024 WL 3841603 (W.D. Wis. Aug. 16, 2024).  The court wrote:

This case arises from a dispute between competitors in the hand-held gardening tool industry. Fiskars alleges that Woodland and its co-defendant, Lumino, Inc., poached Fiskars’ employees and misappropriated Fiskars’ trade secrets and confidential information….  Woodland contends that Fiskars improperly interfered with its manufacturing operation by sending threats to the parties’ shared suppliers.

Id. at *1.  The parties agreed to an ESI Protocol and:

In completing its production of documents, Fiskars withheld certain documents based on attorney-client privilege and work-product protections and logged those documents in two privilege logs, served June 15, 2023 and October 12, 2023….  Combined, the two logs contain entries for 507 documents.

After additional production, Woodland moved to compel regarding 112 documents that were listed on Fiskars’ privilege log. Id.

Although Woodland raised multiple challenges to the privilege log, this blog focuses on only one of them:

Woodland criticizes the descriptions in Fiskars’ privilege logs, but it fails to point to any specific entries or explain how they are deficient…. Rather, Woodland cites to the entirety of the two logs “generally” and asserts the logs contain “vague descriptions.” …  This broad assertion is not helpful to the court’s analysis, particularly when the logs have hundreds of entries. Moreover, it is not entirely clear what Woodland wants the court to order with respect to these logs, as the logical form of relief for a vague description would be supplementation, not production.

Id. at *2 (emphasis added).

While in a belts-and-suspenders process, the court reviewed each log entry, line-by-line, and held that “[t]he court sees no basis to compel Fiskars to either supplement the logs or to produce documents based on the logs’ descriptions,”  it seems safe to conclude that the court was unimpressed with a vague assertion that the logs contained only a vague description.

Procedural rules and the common-law mandate that a claim of privilege or work product protection be made with specificity.

Fiskars suggests that the same standard should apply to a challenge to such a claim of protection.

Busy courts are not archeologists that are expected to dig through the record to find lost treasures.  One court wrote:

Ideally, when asking for relief, a party should direct the court to docket entries and pages necessary to support its contentions, rather than leaving the court to sift through filings on its own. Courts do not act and should not be requested to act, in effect, as archaeologists and do the work counsel should have done.

Sometimes Discovery Disputes Do Not Bring Out the Best in Us, quoting M1 Holdings, Inc. v. Members 1st Fed. Credit Union, 2024 WL 182220 (N.D. Ill. Jan. 17, 2024).

Preservation letters should be specific.  Perils of a Vague Preservation Letter (June 21, 2022), citing Nolan v. O.C. Seacrets, Inc., 2021 WL 4806337 (D. Md. Oct. 14, 2021).

Discovery requests should be specific.  “Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses (Dec. 9, 2021).  They should aim for the “Bull’s Eye.”  New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests (Dec. 8, 2021).

Objections to discovery should be specific.  Court Excused Party From Waiver by Failure to Provide Specific Objections (Aug. 7, 2022), citing Doma Title Ins., Inc. v. Avance Title, LLC, 2022 WL 2668530 (D. Md. Jul. 11, 2022)(objections should be stated with particularity); General Objections, Dracula, and “Whac a Mole” (Apr. 16, 2024).  Boilerplate objections are both ineffective and sanctionable.  Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357-58, passim (D. Md. 2008).

It is well-established that privilege objections must be specific.  Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359 (D. Md. 2008); Hall v. Sullivan, 231 F.R.D. 468 (D. Md. 2005).

Descriptions of privilege and work product protection in a privilege log should be specific, unless otherwise agreed. How Much Detail is Enough in a Privilege Log? (Apr. 9, 2024)(“The standard for determining the adequacy of a privilege log is whether, as to each document, it sets forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.”)(citation omitted); The Standard for In Camera Review of Assertedly Privileged Documents (Jul. 9, 2024); Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024); When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024).

While it may not be a square holding of the Fiskars court, Woodland’s criticism of Fiskars’ privilege log “fail[ed] to point to any specific entries or explain how they are deficient….”  Instead, it referred to them “generally” and challenged allegedly “vague descriptions.”

The Fiskars court wrote that: “This broad assertion is not helpful to the court’s analysis, particularly when the logs have hundreds of entries.”  2024 WL 3841603 at *2.

At least arguably, under Fiskars, the specificity standard applies to challenges to the sufficiency of privilege log entries.

UPDATE: “The Ninth Circuit has held that boilerplate assertions of privilege do not satisfy Rule 26(b)(5)’s notice requirement.”  Athletics Investment Grp., LLC v. Schnitzer Steel Indust., Inc., 2024 WL 3916100, at *3 (N.D. Ca. Aug. 23, 2024).