Withholding Triggers a Duty

Asserting Privilege in Discovery

Withholding Triggers a Duty

Before 1993, a party that held back documents on a claim of privilege or work product could do so in silence. The opponent might never learn the material existed, so the holder had, in effect, the final word on the reach of its own privilege.¹ A 1993 amendment to Rule 26(b)(5) ended that regime. It required any party claiming privilege or work-product protection to make the claim expressly and to describe the nature of the material not produced, and in doing so it put the convention of the privilege log into effect.²

Rule 26(b)(5)(A) now states the duty. When a party withholds otherwise discoverable information by claiming that it is privileged or protected as trial-preparation material, the party must expressly make the claim,³ and it must describe the nature of the documents, communications, or things not produced. The description must be given in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.⁴

The rule pairs a right with a duty. The right comes from the scope provision, which allows discovery of nonprivileged matter that is relevant to a claim or defense and proportional to the needs of the case.⁵ Privileged material therefore lies outside what a requesting party may demand, and holding it back breaks no rule. The duty answers a problem of knowledge: only the holder knows what is being withheld, while the requester sees only what arrives. Without the duty, the requester could not test the claim at all. The Eighth Circuit has described Rule 26(b)(5) as codifying a process that eliminates time-consuming delays in resolving privilege issues. The party asserting privilege gives the other side a list or log describing the pertinent documents without disclosing the privileged communications they contain.⁶ In one treatise's words, a privilege log is a compilation of information about documents requested in pretrial discovery for which a privilege claim has been asserted.⁷

The two halves of the duty serve different ends. The express claim tells the requester that something responsive is being held back. The description gives the requester the facts needed to judge whether the privilege fits. The next sections take each half in turn. This section concerns only the trigger, because every later question depends on whether the trigger has been pulled.

The first step explains the phrase otherwise discoverable. The duty concerns material the requester would receive but for the privilege, so the privilege is the only thing standing between the request and production. The duty also reaches beyond party discovery. Rule 45(d)(2)(A) adopts the same rule for subpoenaed items withheld under a claim of privilege or trial-preparation protection.¹² The advisory committee's note to the 1991 amendment of Rule 45 warns that a party who asserts a privilege or protection but fails to disclose the claim is at risk of waiving it, and one decision repeats that warning.¹³ Later sections take up waiver in detail.

The exact wording of the trigger also matters, and state rules can differ from the federal text. Colorado's rule requires parties to claim expressly and describe specifically both in responding to discovery requests and in making the disclosures required under Rule 26(a). The federal rule is framed around information otherwise discoverable and does not say that it applies to documents covered by the automatic disclosure provision.¹⁴ A lawyer's signature on the response adds a further constraint. Rule 26(g) certification is the initial control on discovery abuse, and like a Rule 11 certification it certifies that the paper is warranted by law and has a proper purpose.¹⁵

In the first version the ground for withholding is irrelevance. No privilege or protection is claimed, so the Rule 26(b)(5)(A) duty is not triggered and no privilege log is required. Silence is still not allowed, because Rule 34(b)(2)(C) requires an objection to state whether any responsive materials are being withheld on the basis of that objection.¹⁶ In the second version the ground is privilege. The lawyer must now expressly make the claim and describe the chain well enough for the requester to assess it, without revealing the advice itself.¹⁷ The ground for withholding separates the two cases: irrelevance triggers only the Rule 34 statement, and privilege triggers the full duty to claim and describe.