Categorical Privilege Log Presented Interpretive Issues

Categorical privilege logs can save time and money.  “The concept of categorical privilege logs in connection with ESI is not new.”  M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), 356; Blog, Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun – E-Discovery LLC (ediscoveryllc.com) (Mar. 25, 2021).   The Sedona Conference has suggested this approach since at least 2007.  Id. at 359.  Maryland Rule 2-422(c) permits a response to “each… category” of a document request, as does Fed.R.Civ.P. 34(b).

In Addi v. Corvias Mgt.-Army, LLC, 2021 WL 4286466 (D. Md. Sep. 21, 2021), however, that savings was not realized due to drafting and interpretation issues regarding an ESI Protocol.

In Addi, The Hon. J. Mark Coulson wrote: “The parties … dispute the meaning and effect of certain provisions of their agreed-to Electronically-Stored Information (‘ESI’) Protocol with regard to exceptions to the privilege log requirement that would otherwise attend to documents withheld on that basis.”

Oversimplifying, the ESI Protocol excluded two types of categories of documents from privilege logging.  First, all information generated after the initial complaint was filed in this matter were excluded.  Second, specific communications “in connection with the Litigation” were excluded from logging.

After Defendant provided its privilege log, Plaintiff argued that only information generated after the filing was excluded and the repeated phrase “in connection with the Litigation” supported its assertion.  Defendant responded that this interpretation rendered the phrase surplusage and, instead, with that phrase, the safe harbor was expanded to include documents dated prior to commencement of the action.

The Court rejected both assertions and interpreted “in connection with the Litigation” to mean in connection with this litigation. Judge Coulson wrote: “That is, the safe harbor does not include privileged communications about some litigation or the potential for future litigation, but only to this Litigation.”  Thus, information generated prior to the litigation need not be logged if it related to “this” litigation.

The Court also directed the parties to each choose twenty logged documents for in camera review.  The Court reviewed and ruled on each of them in connection with assertions of a right to claw them back.

Addi also shows the impact of retaining experts as consultants and later converting them into service providers who are then fact witnesses.  The Court explained:

If TRC, ServPro, Black & Veatch and Aegis had remained solely in their original role of retained consulting experts, the analysis would be straightforward: their gathering, analysis and reporting of technical information to assist Holland & Knight in its representation of Defendants, and the surrounding communications, would be protected from disclosure absent a showing of substantial need and inability to obtain the information from another source without undue hardship. However, the analysis is more complicated once TRC, ServPro, Black & Veatch and Aegis take on the additional role as the entities scheduling and undertaking the actual inspection and remediation program and, in so doing, becoming fact witnesses for whom no protection would apply as to those activities…. The concern for the Court… is that the raw information collected by TRC, ServPro and Black & Veatch regarding the presence and extent of mold, the remediation efforts undertaken, and, as to Aegis and Black & Veatch, the logistics and coordination of that effort is highly relevant, and any protection to which it might otherwise be afforded—had it remained within the confines of a consulting expert relationship is lost to the extent TRC, ServPro, Black and Veatch and Aegis assumed public facing roles in assessing and trying to correct the mold issues at Fort Meade. [Emphasis added].

Two takeaways from Addi are to carefully define the categories in a categorical privilege log and to be aware of the risks of expanding the role of a consulting expert.  Here, it appears that defense counsel was fully aware of that risk before the expansion.