Claiming Privilege Properly

Claiming Privilege Properly

A party that withholds otherwise discoverable information as privileged, or as trial-preparation material, takes on a procedural duty that stands apart from the merits of the protection. Rule 26(b)(5)(A) requires it to expressly make the claim and to describe what it is not producing, in a way that lets the other parties assess the claim without learning what is protected.¹ The protection itself comes from the law of privilege or from Rule 26(b)(3), which ordinarily bars discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative. Rule 26(b)(5)(A) governs only how the holder asserts that protection.²

The protection is worth asserting with care. The Supreme Court’s decision in Hickman explained that proper preparation of a client’s case requires a lawyer to assemble information, sift the relevant facts from the irrelevant, prepare legal theories, and plan strategy “without undue and needless interference,” and that if such materials were open to opposing counsel on mere demand, “much of what is now put down in writing would remain unwritten.”³ A lawyer who sorts privilege from work product correctly but then withholds carelessly can still lose what Hickman protects.

The subsections below follow the rule’s own order: the express claim, then the description, then what courts do when either falls short.

Making the Claim Expressly

Rule 26(b)(5)(A)(i) targets silence. A party that withholds information on a claim of privilege or trial-preparation protection must expressly make the claim,⁴ and it cannot keep quiet either about the claim or about the nature of the material to which the claim attaches.⁵ The rule answers an old problem. Before 1993 a party could simply withhold documents or files as privileged and so have the final word on the scope of its own privilege, because the opponent might never learn the material existed. The 1993 amendment added the duty to make the claim expressly and to describe the nature of what was withheld.⁶ A requester sees only what the responding party sends, and a document left out of a production without a word looks exactly like one that never existed. An express claim turns that silence into a decision the requester can contest and the court can test.

The usual failure is the conditional objection. In Compaq Computer Corp. v. Packard Bell Electronics, Inc., Acer, a nonparty, answered Packard Bell’s subpoenas by objecting to the extent they sought documents protected by the attorney-client privilege, the work-product doctrine, or any other privilege, and it identified no document.⁷ The court held that these general objections did not satisfy the requirement that the claim be made expressly. It ordered Acer to serve a privilege log listing every document withheld, with enough information about each to sustain the burden of asserting the privilege.⁸ Acer was a nonparty, so the court applied the subpoena rule. But Rule 45(d)(2)(A) adopts the same requirement for subpoenaed items withheld under a claim of privilege or trial-preparation protection,⁹ and the reasoning applies equally to party discovery.

An objection that applies “to the extent” a request reaches protected matter describes what the party would do if such matter existed. It does not say whether the party withheld nothing, one e-mail, or ten thousand documents, and a withholding the requester cannot see is one the requester cannot challenge. Courts therefore view reserved boilerplate with suspicion. Liguria Foods, Inc. v. Griffith Labs., Inc. is an example: the court treated objections that invoked privilege or work product to the extent a request called for such documents as improper under Rule 26(b)(5). Another decision, quoted in Kinetic Concepts, Inc. v. Convatec, Inc., struck a defendant’s objections as “nothing more than boilerplate,” but it preserved “any legitimate privilege objections for which a privilege log is submitted along with discovery responses.”¹⁰ The privilege objections that survive are the ones backed by a log.

An express claim must also name the protection the party invokes. Attorney-client privilege and work product are distinct protections, and Rule 26(b)(3) provides work-product protection independently of Rule 26(b)(4)(B), the rule for experts retained in anticipation of litigation who are not expected to testify.¹¹ The two can come apart. In Allegheny’s dispute with Merrill Lynch over reports shared with Merrill Lynch’s outside auditor, Merrill Lynch apparently conceded that the attorney-client privilege had been waived and argued that the reports fell under work-product protection instead.¹² In Coburn Group v. Whitecap Advisors, Whitecap clarified in its reply that it asserted only work-product protection, not attorney-client privilege, and Coburn’s opposition then argued within that frame: that the e-mail was not protected work product, that Whitecap’s inadvertent production waived any protection, and that Coburn was entitled to the e-mail because it revealed that Whitecap had misled the court on an earlier motion.¹³ The label matters because the showings differ. Ordinary work product can give way to a showing of substantial need and undue hardship, but work product that reveals an attorney’s mental processes cannot be reached on that showing alone.¹⁴

The claimant carries the burden. One who invokes a privilege bears the burden of proving that it applies, and the proponent must specifically and factually support the claim.¹⁵ A claim left to implication, or to the requester’s guesswork, does not meet that burden.

A party that fails to disclose its claim risks the protection itself. The advisory committee note to the subpoena rule, quoted in Compaq, warns that “[a] party receiving a discovery request who asserts a privilege or protection but fails to disclose that claim is at risk of waiving the privilege or protection.”¹⁶ The last subsection below takes up how courts respond.

On an exam, the first step does most of the work. A stem that quotes a general objection reserved “to the extent” a request seeks privileged matter, and then reports that documents were quietly left out of the production, describes a failure at the threshold, whatever the merits of the privilege. A privilege that is valid on its elements is still at risk when the holder never claimed it in the form the rule requires.

Describing Withheld Material

Once a party has claimed a protection, Rule 26(b)(5)(A)(ii) requires it to describe the nature of the documents, communications, or tangible things not produced, “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”²² The privilege log is the usual vehicle, the convention that the 1993 amendment put into effect.²³ Compaq shows what a log must contain: the court required a list of every document withheld, with enough information about each to sustain the burden of asserting the privilege.²⁴

The rule’s sentence imposes two limits, and each answers a different risk. The requirement that others be able to assess the claim answers an imbalance of information. Privilege and work product turn on facts such as who wrote a document, who received it, whether it stayed confidential, and why it was created, and only the withholding party knows them. A bare label gives the requester and the court nothing to test. The qualifier that the description must not reveal the protected information answers the opposite risk, because an entry that recited a lawyer’s advice would hand the opponent the very thing the claim exists to protect. The rule resolves the two pressures by asking for the nature of an item and not its content.

A useful entry gives the requester facts that map onto the elements of the claim. The author and recipients show which side of the dispute a document sits on, and work product, for instance, shields the wrangles within the client’s legal team from the opposing party.²⁵ The date and stated purpose show whether litigation was in view. A document need not postdate the complaint: the mere fact that it was prepared before litigation began does not preclude work-product protection, though litigation must at least be a real possibility when the document is prepared, so that it is prepared with an eye to some specific litigation.²⁶ A corporation that hired outside counsel to investigate suspected illegal foreign payments, for example, could claim protection even though no suit was pending, because some litigation was almost inevitable if the investigation confirmed its suspicions.²⁷

The stated purpose also shows whether a document falls outside work product altogether. Protection is withheld from documents prepared in the ordinary course of business, or that would have been created in essentially similar form irrespective of the litigation.²⁸ A business use does not automatically strip protection, however. A document created because of anticipated litigation, which tends to reveal mental impressions, conclusions, opinions, or theories concerning the litigation, does not lose work-product protection merely because it is meant to help make a business decision influenced by the likely outcome of that litigation.²⁹ An entry for a document with both uses should say enough about why it was created for the requester to test the because-of question.

The subject matter shows whether a document reveals a lawyer’s thinking. As one opinion observes, an investigation that encourages fairly wide-ranging disclosure, so that no nascent focus on the lawyer’s part inhibits the client’s disclosures, is more likely to yield fact work product than opinion work product, because the resulting documents may not reveal the lawyer’s focus.³⁰

Courts measure descriptions against the claimant’s burden. In the dispute between Wainwright and Schindler, Schindler withheld its description of the factual circumstances of an accident investigation as work product, and Wainwright answered that the investigation was a routine business report and that he could not obtain similar information from other sources. The court found that Schindler had not met its burden under Rule 26(b)(5) to “enable other parties to assess the applicability of the privilege or protection.”³¹ Another order, directed to WMATA, required a list of the documents it withheld on privilege grounds and the basis for the assertion of privilege.³²

The description must therefore supply facts rather than conclusions, because the proponent of a privilege must specifically and factually support it.³³ The word “privileged” alone, a list of identifying numbers, or a statement that every item was a request for advice leaves the requester nothing to assess.

A recipient list can also raise waiver questions that a requester will notice, as when an entry shows that a document went to an outside auditor. Courts have mostly rejected the argument that such a disclosure waives work product: one court noted that no circuit had decided the question and that most district courts to address it had found no waiver,³⁴ and another reasoned that an independent auditor’s obligations do not make it a conduit to the company’s adversaries.³⁵ The log does not decide that dispute. It puts the facts on which the dispute depends in front of the requester, and a later section takes up waiver.

A requester who finds a log inadequate does not have to accept it. A lawyer who considers the information important and remains convinced that it is not privileged must file a motion to compel under Rule 37(a)(1), and the court then decides whether the privilege applies and, if it does not, orders a response.³⁶

A withholding party’s response should be checked against both limits of the rule. A bare label, a list of numbers, and a conclusory assertion all fall short of the first limit, because none lets the requester assess the claim. An entry that quotes the advice or summarizes a witness’s account falls short of the second, because it discloses the content the claim protects. The entry that passes names the kind of document, its date, its author and recipients, its general subject, and the protection claimed.

Consequences of Deficient Logs

Rule 26(b)(5)(A) states two duties, an express claim and a description, but not what follows when a party never logs, logs too thinly, or relies on boilerplate.⁴⁰ The consequences come from the courts, and they run from an order to do what the rule required to forfeiture of the protection.

Courts act at all because of the gap the log exists to close. Privilege and work product turn on facts that only the withholding party knows, so a requester who receives no description cannot test the claim and a court has nothing to decide. The practice before 1993 shows the alternative: a party could withhold in silence and have the last word on its own privilege.⁴¹ A party that never logs restores that practice.

The milder responses give the party a chance to comply. In Compaq, the court met a nonparty’s general objections with an order to serve a log listing every document withheld.⁴² Another order directed WMATA to produce a list of the documents it withheld on privilege grounds and the basis for the assertion of privilege.⁴³ In the Wainwright dispute, the court found that Schindler had not met its burden under Rule 26(b)(5) to let other parties assess its work-product claim.⁴⁴ Where a defendant offered only boilerplate, one court struck its objections but preserved the privilege objections backed by a log.⁴⁵ Each response gives the requester the information it was denied.

The severest response is waiver. In Rhoads Industries v. Building Materials Corp., a young associate withheld many documents and files from production on privilege grounds without making a privilege log, and the court later held that the failure resulted in waiver of the privilege for all that material.⁴⁶ The advisory committee note quoted in Compaq anticipates that risk, warning that a party who asserts a privilege but fails to disclose the claim is “at risk of waiving the privilege or protection.”⁴⁷ In Williams v. Sprint/United Management Co., the producing party removed metadata from spreadsheets because it feared the metadata might reveal privileged or work-product matter, yet it made no objection, served no log, and offered not even a general description of what it had removed. The court held any attorney-client privilege or work-product protection for the metadata waived, apart from material it had already allowed the party to redact.

Waiver is a choice the court makes, not an automatic result. The same advisory note says “at risk,” and Compaq responded with an order to serve a log. A party cannot count on a second chance, though, because Rhoads shows that a court may decline to give one.

Waiver for a deficient log also differs from the waiver taken up in the next section. A deficient log forfeits the claim by neglecting the procedure for asserting it. The waivers that follow arise from what a party does with the protected material itself.

An exam stem that reports documents dropped from a production with no log ever served describes the facts on which a court found waiver. A stem that reports only a boilerplate objection describes facts for which an order to serve a log is the more familiar response. Either answer should be framed as the court’s choice among available responses.