Imprudent for Senior Attorney to Not at Least “Spot Check” Privilege Log?

In Elite Semiconductor, Inc. v. Anchor Semiconductor, Inc., 2026 WL 1097741 (N.D. Cal. Apr. 22, 2026),the court addressed the scope of a senior attorney’s duty to check a privilege log prepared by a senior associate.

Plaintiff, Elite, was found to be liable for Defendants’ attorney’s fees in a trade secret lawsuit. Defendants sought fee awards against a number of other firms and attorneys.

Attorneys’ names are published in the court decision; however, I have anonymized the one discussed here.  While a number of claims were asserted against Mr. AAAA, this blog focuses on the privilege log discussion relating to the fee claim under both 28 U.S.C. §1927, and the court’s inherent, common-law power.

One substantive issue was whether the attorney knew of a 2013 patent application by “Anchor.”  Mr. AAAA said that his client had not told him of that earlier application.  However, that did not end the issue. The court wrote:

Defendants contend that even if Mr. AAAA’s client did not tell him that Elite knew of the Anchor Application in 2013, his own team did….  In April 2022, Mr. AAAA’s team created a privilege log that showed that Mr. [BBBB] received the Anchor Application in 2013. Defendants argue that this shows that, by April 2022, Mr. AAAA knew that Elite had received the Anchor Application in 2013…. Defendants also allege that the lawyers intentionally gave the document a vague title—“Prosecution of US Appl. No. 13/1338331”—so that Defendants would not realize what the document was.

Id. at *5.

In his response: “Mr. AAAA claims that he did not personally review the privilege log until December 2022…. When he finally reviewed the log and realized the error, he produced the documents immediately.” Id.

That led to a discussion of Mr. AAAA’ standard of care under the applicable “bad faith” standard.

First, the court wrote that, although he failed to carefully investigate the privilege log for months, the attorney had “reasonably believed” his client.

Next, it turned to the supervisory issue:

The Court is also not convinced that Mr. AAAA acted recklessly. Recklessness requires “much more than mere negligence: it is a gross deviation from what a reasonable person would do.” Reckless, Black’s Law Dictionary (12th ed. 2024). Here, Mr. AAAA assigned a senior associate with the task of preparing the privilege log…. Though he reviewed the log before it was served, he did not review the logged documents…. A more careful attorney would have reviewed the logged documents, or at least conducted a spot check. But Mr. AAAA’s total reliance on his associate’s work—though certainly imprudent and possibly negligent—is not a gross deviation from reasonable behavior and does not constitute recklessness. See Tallman v. CPS Sec. (USA), Inc., 655 F. App’x 602, 603 (9th Cir. 2016) (distinguishing between imprudence and recklessness).

Id. at *5 (emphasis added). The court denied the fee request under both §1927 and its inherent power, finding that Mr. AAAA  did not act in bad faith.

A number of other issues were also addressed, with the court concluding: “In sum, the Court finds that Mr. AAAA is not liable for fees under Section 1927. But the Court is nonetheless disappointed with Mr. AAAA’s prosecution of this case. Clearly, there were numerous opportunities throughout the litigation where Mr. AAAA could have realized that the statute of limitations barred his client’s claim. Had Mr. AAAA been less dogmatic about his case and perhaps less derisive toward opposing counsel, he would have recognized his error sooner. The Court encourages Mr. AAAA to exercise greater humility in the future.”  Id. at *5.