Plaintiffs’ Failure to Timely Raise Lack of Defendant’s Privilege Log Defeats Waiver Claim

A motion to hold that defendant waived all asserted privileges due to failure to timely log them was denied. While the court confirmed a continuing duty to supplement initial disclosures, it refused to impose a “rolling” duty.

Plaintiffs sued their insurer, alleging unfair claims settlement practices arising out of property damage to their home. The insured plaintiff’s failure to timely raise the privilege log issue resulted in denial of the request to find waiver by the defendant insurer. Gurner v. Amer. Family Mutual Ins. Co., 2026 WL 381894 (D. Nev. Feb. 10, 2026).

On May 8, 2024, the insurer made its Fed.R.Civ.P. 26(a)(1) initial disclosures.  On October 28, 2025, it made additional disclosures and provided a privilege log.

The insureds asserted that the delay violated the supplementation duty of Rule 26(e) and waived all privileges.  The insurer replied that “Rule 26(e) does not impose a 30-day ongoing rolling duty to supplement disclosures.” It asserted that the additional disclosures had been withheld under a claim of privilege and that it later “re-evaluated its position and produced the materials with redactions and an accompanying privilege log.”  It rejected the argument that it had waived privilege.

Citing Rule 26(e)(1)(A), the court wrote that: “A party is required to supplement its disclosures ‘in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]’” Further, it wrote:

Rule 26(e) does not provide a specific timeline for supplementing initial disclosures. “Supplementations need not be made as each new item of information is learned but should be made at appropriate intervals during the discovery period, and with special promptness as the trial date approaches.” Fed. R. Civ. P. 26(e) advisory committee note to 1993 amendment. The comments do not elaborate on what is an “appropriate interval.” [emphasis added].

The Gurner court added: “In the context of supplementing initial disclosures, courts have generally considered whether the timing of the disclosure is reasonable based on what information was available to the party and when.”

In applying these principles, the Gurner court first wrote that the insurer should have provided a privilege log “at appropriate intervals” and that “likely would have occurred sooner than the time that elapsed between the initial disclosures on May 8, 2024, and the October 28, 2025 supplement.”

However, precedent called for a “holistic analysis,” according to the court. One factor was plaintiff’s delay. The Gurner court wrote that it “cannot ignore the inexplicable fact that Plaintiffs did not raise the issue of production of post-litigation claims notes materials until late August 2025—some fifteen months after the initial disclosures first identified the claim handling notes/log.” [emphasis added].

After the issue was raised, the insurer acted cooperatively, met and conferred, and responded within two months. The Gurner court added that the “significant document production may make responding to discovery unusually hard.”

Most significantly, on these facts the court wrote:

In sum, “[f]inding a waiver of privilege is an exceedingly severe outcome,” that the court does not find is justified under these circumstances. United States v. Al-Shawf, No. ED CV 16-1539-ODS (SPx), 2017 WL 5997440, at * 4 (C.D. Cal. Sept. 5, 2017) (citation omitted). While American Family should have identified and updated its privilege log with respect to the post-litigation claim file documents earlier than it did, it does not find a waiver of all privileges and protection is appropriate where the Plaintiffs did not raise the issue of production of these documents until fifteen months after the initial disclosures were made. Once the issue was raised, American Family was cooperative in the meet and confer process and provided a supplement to its initial disclosures and updated privilege log within a reasonable time. [emphasis added].

The court then wrote:

The court will not impose a rolling obligation for American Family to supplement its initial disclosures every 30 days, but instead, all parties are obligated to update their initial disclosures in accordance with Rule 26(e), i.e., within a reasonable time of learning that the material disclosed is incomplete or incorrect. American Family is certainly on notice now of the need to timely identify and provide an accompanying privilege log for any additional post-litigation claim handling log/notes and the failure to do so in the future may result in another motion and the imposition of sanctions under Rule 37.

Plaintiffs’ “inexplicable” delay seems to have undercut its assertion that defendant’s delay waived privilege.

This blog was initially posted on  Electronic Discovery Reference Model.