Expressly Making the Claim

Expressly Making the Claim

Rule 26(b)(5)(A) puts two duties on a party that withholds otherwise discoverable information as privileged or as trial-preparation material. The party must “expressly make the claim,”¹ and it must describe the withheld documents, communications, or tangible things in a way that, without revealing protected information, lets other parties assess the claim.² One court states the combined obligation this way: the party asserting a protection “must not only sufficiently assert the basis therefor, but must also timely produce a privilege log.”³ This unit covers the first duty; the description requirement comes next.

The word expressly carries the weight. A requesting party sees only what is produced, so a gap in the production might mean irrelevance, oversight, or a protected communication, and the requester cannot tell which. An express claim turns the holder’s private decision to withhold into a position the other side can examine and, if necessary, put before a judge. Two kinds of response fail that test. The first recites privilege in the abstract and so points to no document. The second produces what the party chooses and says nothing about what it kept back.

Boilerplate Is Not a Claim

Responding parties often try to meet the express-claim duty with a stock paragraph: a numbered general objection at the front of the written response, incorporated into every answer, that objects “to the extent” a request calls for material protected by the attorney-client privilege or the work-product doctrine. Courts do not accept it as a claim. In Liguria Foods, Inc. v. Griffith Labs., Inc., neither side’s privilege-based objections came with the required list or log describing the pertinent documents without disclosing the privileged communications. The court held that the responses “improperly hampered, rather than facilitated, the timely and inexpensive determination of privilege issues,” and it recalled that the log requirement in Rule 26(b)(5) was designed to eliminate time-consuming delays in resolving privilege disputes.⁴

The stock objection fails because of its grammar. A conditional that applies “to the extent” a request reaches privileged material is equally true whether the responding party holds a hundred privileged documents or none. It identifies no document, so the requester cannot learn what is withheld or whether the production is complete. Nor can the requester tell which of several general objections is meant to apply to which request, the defect the Liguria court found in answers given “subject to” general objections.⁵ The description duty confirms the point. It speaks of “the documents, communications, or tangible things not produced,” and a response that identifies no such item leaves nothing to describe.⁶

A privilege claim also needs more than the word “privilege.” The party that invokes a privilege bears the burden of proving that it applies, and “it is incumbent upon the proponent to specifically and factually support his claim of privilege.”⁷ A bare recital supplies neither specifics nor facts. The Liguria court applied the same demand across the board. It measured the remaining responses against the specificity requirements of Rules 33(b)(4) and 34(b)(2), found them wanting, and held that the objecting party had not carried its burden to demonstrate lack of relevance or undue burdensomeness under Rule 26(b)(1).⁸

Courts accordingly treat boilerplate as no objection at all. They repeat the warning that “[b]oilerplate, generalized objections are inadequate and tantamount to not making any objection at all.”⁹ Magistrate judges in at least five district courts in the Fourth Circuit have declared boilerplate objections to discovery requests, including requests for documents, invalid.¹⁰ In Barb v. Brown’s Buick, Inc., the court struck the defendant’s boilerplate objections “except with regard to any legitimate privilege objections for which a privilege log is submitted along with discovery responses.”¹¹ The exception marks the line. A privilege objection tied to specific material and accompanied by a log survives, while one that merely recites the privilege does not.

A claim without a log is also incomplete. In Strauss v. Credit Lyonnais, S.A., the plaintiffs did not provide a privilege log with their responses to the defendant’s interrogatories and document requests, as Rule 26(b)(5) requires.¹²

Parties sometimes defend general objections as placeholders that protect their rights while the lawyers confer about scope. Griffith made that argument in Liguria, contending that its general and boilerplate objections were meant to ensure it did not waive its rights while the parties conferred about the scope of privileges, time periods, and other issues. The court rejected it. Under Rules 33 and 34, any ground not stated in a timely objection is waived unless the court excuses the failure, and the idea that general or boilerplate objections preserve anything is an “urban legend.”¹³ The logic follows from the waiver rule itself. Preservation depends on stating the ground, and a general objection states no ground against any particular request, so nothing exists for preservation to attach to. A party that relied on the stock paragraph may later find that the privilege it meant to protect was never properly asserted, a consequence taught in full under waiver below.

Disclosing What Is Withheld

An express claim must also tell the requester that responsive material is being held back. Rule 34(b)(2)(C) imposes the same visibility on every objection, not only privilege objections. An objection “must state whether any responsive materials are being withheld on the basis of that objection,” and an objection to part of a request must specify the part and permit inspection of the rest.¹⁵ The two provisions work together. The privilege rule makes a party announce a protected withholding, and the Rule 34 provision makes every objecting party say whether its objection is costing the requester any documents.

A requester cannot challenge what it does not know is missing. An incomplete production looks exactly like a complete one unless the response says otherwise, and a motion to compel needs a target. In Averyt v. Wal-Mart Stores, Inc., applying Colorado’s rules of civil procedure, the opinion reasons that a party not required to produce certain documents is still “not absolved from disclosing the existence of relevant or responsive documents,” whether by listing them on a privilege log or by objecting to their production, because that disclosure lets the opponent move to compel and lets the court resolve the dispute.¹⁶ The right to withhold never carries a right to conceal.

The silent-withholding failure usually takes the form of a production made “subject to” objections. The Liguria court held that such wording does not satisfy the specificity requirement, because it leaves the requester unclear whether the documents or answers provided are complete and whether responsive documents are being withheld, and it cited Rule 34(b)(2)(C) for the point.¹⁷ Kinetic Concepts, Inc. v. ConvaTec, Inc. illustrates the pattern: a response produced documents subject to objections without saying whether anything further was being held back, and the requester was left unable to tell what was missing.

Qualifiers of this kind hand the decision about what counts as withheld to the responding party. A statement that nothing “relevant, non-privileged” is being held back remains true even if the party has kept back every document it privately labels irrelevant or privileged, and the requester cannot test those labels because the documents never appear. The stock objection fails because it identifies no document. The “subject to” production fails from the other direction, because it never reveals that a document is missing. Both leave the requester guessing, and the privilege log ends the guessing. A recipient that withholds otherwise responsive documents on a claim of privilege must disclose that fact through a proper privilege log.¹⁸ A log also turns withheld material into something the requester can contest. In one dispute, the plaintiffs’ third motion to compel sought more than 1,500 documents identified in the defendants’ privilege logs.¹⁹

Disclosure is not something a party may postpone indefinitely. One court found the plaintiff’s assertion of attorney-client privilege waived as to all responsive documents because the plaintiff produced its log nearly two months after the court’s ordered date, while another found an amended log “sufficiently prompt as to avoid a waiver of all privilege.”²⁰ The timing rules are taken up later in this chapter.

Once the withheld items are identified, the dispute can be about specific documents, and the challenger is expected to engage at that level too. In one decision, the court found the communications at issue protected by the attorney-client privilege and/or the work-product doctrine, and it denied the plaintiff’s motion for production or in camera review where he identified no specific documents he believed were not privileged and suggested none that warranted review.²¹ On an exam, the phrases “subject to its objections” and “relevant, non-privileged documents” are the signal that no claim has been expressly made. How much each log entry must say is a separate question, taken up next. The requirement here is only that the withholding be visible.