Do You Have to Ask an Opponent for a Privilege Log?

In Wagner v. Norcold, Inc., 2024 WL 2703015, at *3 (E.D. N. Car. May 24, 2024), plaintiffs claimed that defendants’ allegedly defective refrigerator had caused a destructive fire.   They asserted that defendants had waived privileges “in the absence of a privilege log….”  There were several other discovery disputes and the parties submitted emails, exhibits, and a declaration.

Plaintiffs argued that Fed.R.Civ.P. 26(b)(5)(A) mandated a privilege log and “that Defendants have failed to produce a privilege log despite Plaintiffs’ previous requests to do so….” Id. (emphasis added).  In other words, plaintiffs asserted that defendants had waited too long.

Defendants, however, made the same argument: “Defendants claim that Plaintiffs never requested a privilege log prior to filing their first motion to compel, and that after the court issued its January 11, 2024 order denying the requested relief, Plaintiffs first sought production of a privilege log via email on that same date.”  Defendants added:

According to Defendants, while the parties conducted multiple telephone conferences thereafter regarding Plaintiffs’ complaints as to Defendants’ discovery responses, the privilege log issue was never raised…. Defendants state that they have never refused to produce a privilege log, but at this juncture, creating one is “wholly unreasonable and impractical” because of the scope of Plaintiffs’ discovery requests.

Id. (emphasis added).

Plaintiffs argued that defendants’ arguments were an “excuse” to avoid producing a privilege log. Id.

The parties had submitted a report on under Fed.R.Civ.P. 26(f) that unhelpfully stated: “If a privilege log is deemed necessary, the party claiming privilege and/or attorney work product will prepare a privilege log in accordance with Federal Rule of Civil Procedure 26(b)(5).”

The court held that a privilege log was necessary, denied the request to deem the privilege waived, and ordered defendants to produce a privilege log.  In context, this was only one of a constellation of discovery rulings that filled 16 pages.

A prior motion to compel had been denied without prejudice, in part for failure to confer in good faith to attempt to resolve the dispute. Id. at *2.  The instant motion was filed a little more than a month later.

I see two guiding principles.

First, it is not necessary to request a privilege log.  The rules compel it without request and the failure to provide it may result in waiver of the privilege.  See, e.g., Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024).

Second, before moving to compel, a good faith conference to resolve the discovery dispute is required.  “Good faith” has been described in opinions.  What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024); Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024); District of Maryland’s Proposed Amendment to “Good Faith” Conference Rule (Apr. 7, 2023).

A good faith conference would require a meaningful, pre-filing discussion.

On a different discovery issue, the Norcold court noted a futility exception to the good faith conference requirement: “Turning first to the parties’ Local Rule 7.1(c)(2) contentions, in reviewing the briefs and exhibits, it is evident that the communication issues addressed in the court’s January 11, 2024 order have not been resolved. The court reminds counsel that the meet and confer requirement is not optional, and that the obligation is not satisfied by an exchange of written correspondence (including email messages). However, the undersigned finds that the parties’ sustained failure to communicate warrants judicial intervention at this juncture, thus the court will not deny the instant motion on this basis.”  Id. at *13, 15.

Holding one’s card close to the chest when responding to discovery may have disadvantages that go beyond being compelled to respond.  There are always strategic considerations in discovery.  It may be beneficial to be more forthcoming.  See Accurate and Complete Discovery Responses Can Be Strategically Advantageous (May 13, 2024).

The Norcold court addressed a number of other issues.[1]

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[1] The court addressed boilerplate objections in detail, id. at *5-6, passim, as well as contention interrogatories, id. at *6, among other issues. It addressed responses to requests for admission and the need for specific objections to document requests.