South Carolina District Judge J. Michelle Childs recently ruled that a plaintiff’s Categorical Privilege Log was inadequate and ordered the plaintiff to supply a new log that contained metadata about each document. In Companion Property and Casualty Insurance Company v. U.S. Bank N.A. et al, No. 15-01300 (D. S.C., Nov 3, 2016 , the order stated that the plaintiff was required to provide the defendant with the following:
- a metadata log for all documents withheld or redacted
- affidavit(s) from the people with knowledge regarding the privileged third party and common interest parties, and
- a list of anticipated litigation(s) for the documents withheld on the basis of work product protection.
The plaintiff alleged a breach of contract and fiduciary duty over the substantial loss in value of trusts associated with the plaintiff’s insurance program. The defendant initially moved for an order to compel to produce more detail. Specifically, they asked for “document-specific privilege log of redacted and withheld documents” which pre-date February 14, 2014. Additionally they requested that “with respect to any work product claims,” the plaintiff should provide information regarding “what litigation it anticipated, when the litigation was anticipated, the facts that caused . . . [Plaintiff] to anticipate the litigation, and how that anticipation drove the creation of the withheld document.”
Plaintiff argued that they had already supplied a categorical privilege log, which was the form that both parties agreed to during the Meet and Confer. Further the parties had agreed that privilege logs did not need to identify redacted documents where the asserted privilege was evident on the document face. Plaintiff stated that defendant then changed the requested relief in its Motion to Compel to include:
- dates of communications
- date created
- document custodian
- to/from/cc fields
- subject lines for emails
- and certain key third party communications
The plaintiff agreed to produce the metadata log, but was adamant that all communications with a key third party were protected by the attorney-client privilege. The defendant accepted that proposal in part, but asked the court to require production of the agreed-upon information be expanded to an earlier time frame regarding key third party(s) to determine if privilege had been properly withheld and require that the plaintiff attach to the list of anticipated litigations “an affidavit stating the point in time it anticipated such litigation, the facts that caused it to anticipate such litigation and describe the categories and types of documents that were created in anticipation of such litigation”.
Under Rule 26(b)(5), any party wishing to withhold “information otherwise discoverable” on the basis that the information “is privileged or subject to protection as trial-preparation material” must provide an index of the withheld documents. Judge Childs included this language in her statement, “To comply with the requirements set forth in Rule 26(b)(5)(A), a party seeking protection from producing documents must produce a privilege log that ‘identifies each document withheld, information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document’s general subject matter.”
With that in mind, Judge Childs ruled:
“Upon review of the Categorical Privilege Log in the context of Defendant’s complaints, the court finds the Plaintiff’s log does not allow Defendant or the court to test the applicability of the attorney-client privilege and/or work product protection as to each document sought to be withheld. Accordingly, the court concludes that Plaintiff’s Categorical Privilege log is inadequate.”
The Motion to Compel was granted in part the Plaintiff was ordered to provide the following information in an expanded Privilege Log:
- a metadata log for all documents withheld or redacted dated before February 14, 2014 (covering the increased time period requested).
- Affidavit(s) from the person(s) with knowledge regarding the privileged third party and common interest parties; and
- A list of anticipated litigation(s) for the documents withheld on the basis of work product protection dated before February 14. With respect to each item on the list, Plaintiff must identify the point in time that the litigation was anticipated, the facts that cased Plaintiff to anticipate litigation and a general descript of the types of and categories of documents that were created in anticipation of that litigation.
Is this the beginning of new requirements that will become the standard or is this a particular result from a particular set of circumstances? Privilege logs have long been seen as a requirement that attorneys did not need to pay much attention to and the delegated the creation work to staff people. However, with the dramatic change from paper to electronic discovery, it is are easier to create more detailed fields of information to assure the courts that documents have been held back appropriately. Only time will tell.
LINK HERE for another Privilege Log Case Discussion