Court Issues Stern Warning About Privilege Logs

A party that fails to timely provide a privilege log does so at its peril. In J.T. v. City and County of San Francisco, 2025 WL 2213208 (N.D. Cal. Aug. 4, 2025), plaintiffs[1] sued over a mass arrest. Defendants asserted the qualified, official information privilege, but failed to provide a privilege log under Fed.R.Civ.P. 26(b)(5)(A).  The court ordered Defendants to do so by a date certain.

In its decision, the court issued a stern warning:

Defendants’ failure to identify the materials at issue in privilege logs is troubling, bordering on indefensible. Defendants’ assertion that the “City was not aware that Captain Harvey had given an interview to the DPA,” … rings hollow when: (1) the DPA is an agency of the City, albeit an independent agency; and (2) perhaps more importantly, Harvey is himself a defendant in this case, represented by the same counsel as the City. The Court is not inclined to resolve this dispute based on principles of waiver when there appears to be a viable path forward that protects both sides’ interests, but a holding that the City waived any protection for these documents by failing to produce a privilege log would likely find solid legal authority. To avoid any further impediments to discovery due to Defendants’—and at least in the R.P. case, apparently also Plaintiff’s—failure to serve a privilege log, the Court now sets a deadline for the parties to do so.

If they have not done so already, the parties are ORDERED to exchange privilege logs—including for DPA materials that are responsive to document requests or would fall within Defendants’ initial disclosure obligations—no later than August 11, 2025. Documents must be identified individually, along with specific reasons for withholding them. If necessary, parties may designate portions of their privilege logs as confidential under the protective orders in place in these cases.

Id. at *1-2.  Further it wrote:

If the parties have reached any agreement to limit their privilege log obligations under Rule 26(b)(5)(A), they must file a stipulation and proposed order by the same deadline. The Court reserves the right to reject or modify any such agreement if it is antithetical to the efficient completion of discovery….  This opportunity to submit a stipulation for the Court’s review should not be construed as inviting disputes over limitations on privilege log obligations that have not been agreed by all parties. Any disputes over privilege log obligations shall be resolved in favor of disclosure as required by Rule 26(b)(5)(A).

Id. at *2 & n. 2. The court also addressed some other issues, including timing of certain disclosures: “Neither side’s interest in its preferred schedule for disclosure is particularly compelling.”  Id. at *3.

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[1] Two separate cases were at issue.