Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue

A privilege log had substantive implications in Cáceres v. Sidley Austin LLP, 2025 WL 1826140 (N.D. Ga. Jul. 2, 2025).

This is parallel to Conner v. Stark & Stark, P.C., 2025 WL 1694052 (D.N.J. June 17, 2025)(unpublished), where a Privilege Log Helped Defeat Summary Judgment on One Count (Jun. 17, 2025). In Connor, privilege log entries were inconsistent with a litigant’s testimony about when termination was first discussed.

In Cáceres, privilege log entries appeared to show that plaintiffs were on notice of their claim months earlier than they asserted in interrogatory answers.

One issue was whether the plaintiffs, Cáceres, had used reasonable diligence to uncover claims that they had against Sidley Austin LLP (“Sidley”).  They sued for, inter alia, professional negligence in connection with tax advice.  Sidley asserted a time bar and Cáceres asserted that they had acted with reasonable diligence.  They claimed that, prior to an IRS ruling, they “had no reason to believe that Sidley’s advice was incorrect….”

Sidley moved to compel production of documents by a third party law firm, Smith, Gambrell & Russell LLP (“SGR”) and also “deposition testimony concerning the Cácereses’ communications with their attorneys about their potential claims against Sidley, including facts supporting such claims, which Plaintiffs and SGR have asserted are privileged.”

The Caceres court held that plaintiffs had waived any privilege or work product protection.

Having asserted that they acted with reasonable diligence because they “had no reason” to believe that Sidley’s advice was incorrect until January 2021, the Cácereses cannot now use the attorney-client privilege and work-product doctrines to prevent Sidley from testing whether that factual assertion is true. That is especially so here, where tolling is a central issue in this case and where the Cácereses have expressly cited communications with their attorneys in sworn discovery responses about how they investigated and ultimately discovered their potential claims.

Among other reasons, the court looked to privilege log entries:

The Court finds that compelling the production of documents withheld by SGR is appropriate and justified under the circumstances. SGR’s privilege log indicates that these communications were between SGR, the Cácereses, and counsel for the Cácereses in this matter. Beginning in February 2021—that is, many months before October 2021, when the Cácereses have stated in sworn discovery responses that they learned of their claims against Sidley—SGR received a communication from the Cácereses’ counsel titled “Henco/Caceres Matter –Potential Claims related to Midco transaction.” This email appears to have prompted a series of related emails about the Cácereses’ “potential claims,” all of which take place before October 2021. The substance of those communications bears directly on the veracity of the Cácereses’ sworn interrogatory response that they “did not become aware of potential claims against Sidley Austin until on or around October 2021 when they engaged counsel in these matters.” These materials may also reveal that the Cácereses were aware of the claims, or the facts supporting such claims, before their current counsel’s outreach. Thus, even assuming that the communications are privileged, the Court finds that the Cácereses have waived any privilege or work-product protection associated with these emails. [Emphasis added].

The court also overruled an objection to the deposition of an SGR attorney.

Nevertheless, the court did not permit unrestricted inquiry. “Nothing in this Order shall be construed to permit Sidley to inquire into communications between the Cácereses and their counsel about matters unrelated to the Cácereses’ assertions with respect to tolling. Nor shall anything in this Order be construed to grant Sidley access to SGR’s “own analysis and debate” over how to advise their clients.”