Court Review of Logged Claims

Court Review of Logged Claims

A requester who disagrees with a privilege claim moves to compel, and the first thing the judge reads is the log. Rule 26(b)(5)(A) asks the withholding party to "expressly make the claim"¹ and to describe the withheld material in a way that, without revealing protected information, "will enable other parties to assess the claim."² The court relies on the same description. One court stated the standard plainly: the description of each document and its contents must be detailed enough for the court to decide whether the elements of attorney-client privilege, or in other cases work product, have been established, and documents whose descriptions fail that test must be produced.³ The log therefore sorts disputes into two kinds: those the court can decide on the written record, and those that require it to look behind the claim at the documents.

A thin log invites the second kind of dispute and can prove costly to the party that served it. In a dispute over some 1,500 documents about the development of an invention, the plaintiffs claimed attorney-client privilege or work product protection and described the documents in a 370-page log. After a brief review, the court found the descriptions too thin to support a ruling. Under court order the plaintiffs filed a 386-page log, and they also discovered that nearly 100 documents they had first considered privileged were in fact discoverable.⁴

Looking behind the claim means in camera review, in which the judge reads the withheld documents privately, without the requester seeing them. It is the most direct way to test a privilege claim and the most expensive. Where privilege was claimed on 30,000 documents, nearly 500,000 pages, the court observed that the courts are severely taxed, that shifting the review to outside experts raises costs, and that the situation harms litigants, courts, and the justice system alike. It concluded that some solution had to be found that fully protects the right to claim privilege while being more feasible for the courts, less expensive for the parties, and less time consuming for everyone.⁵ A log that describes each item well lets the court open only the items the log leaves in real doubt.

When the log is adequate and the requester offers nothing against it, the court may stop at the log. In one case the plaintiff asked the court to order production of the logged documents or, alternatively, to review them in camera. The court found that the defendants had established that the communications at issue were protected by the attorney-client privilege or the work product doctrine. The plaintiff had identified no specific document he believed was unprivileged and had suggested none for in camera review, so the court denied his motion.⁶ A privilege log did similar work in Jones v. Univ. of Iowa. Jones moved to compel written communications between Stolar and the Regents, and the defendants produced a privilege log. The district court held that attorney-client privilege protected roughly 250 items summarized in the log and denied the motion.⁷ One log let the court rule on hundreds of items at once.

When the log cannot settle the question, the court has more to do, and its options come in sequence. A court of appeals reviewing a demand for an appellant's records described them. The appellant's guardian could screen the records first and produce whatever is not privileged or confidential. For anything withheld, the court could require the Rule 26(b)(5) log. If the log was insufficient to let the court resolve the issue, it could review the withheld documents in camera. If the volume was too large for its own review, it could delegate the task to a magistrate judge.⁸ The court added that a district court may use this procedure or one of its own devising, but it may not compel production without determining whether any record is subject to a federal privilege and without weighing the probative value of each non-privileged document against the intrusion into the appellant's legitimate privacy interests.⁹

Neither court treated a thin log as an automatic order to produce. The first ordered a fuller log, and the second described in camera review as the next step. The threshold still has teeth, because documents whose descriptions never let the court decide must be produced.¹⁰

Inspection can change the outcome. In one suit a county withheld documents as privileged attorney-client communications and produced a log in their place. The plaintiffs moved to compel production of the logged documents, almost all of them e-mails, and the county submitted the documents to a magistrate judge for in camera inspection. The magistrate judge ordered ten of the withheld e-mails produced.¹¹ Those ten e-mails (variously) reviewed the law on strip searches of detainees, assessed the county's current search policy, recommended alternative policies, and monitored the implementation of the changes.¹² What inspection tests is whether the elements of the privilege or protection are present, a question the lessons on each doctrine answer.

When the withheld set is too large to inspect in full, the court need not read everything. In the 500,000-page dispute, the court told the parties to extrapolate meaningful guidance from the sample resolution process and added that the discovery dispute must ultimately come to an end.¹³ Delegation to a magistrate judge offers a second route.¹⁴ The better the log, the fewer documents the court has any reason to open.

A log serves claims of attorney-client privilege and of work product protection alike, since the decisions above tested logged claims under either doctrine.¹⁵

The court that rules on a logged claim is ordinarily the court where the action is pending. In one subpoena dispute, State Farm argued that the Rigsbys had not alleged sufficient facts or provided a privilege log to support an assertion of privilege. The court nonetheless declined to reach the merits of the privilege claim, because the Mississippi district court where the action was pending was better suited to decide it, given its familiarity with the underlying litigation. The magistrate judge therefore did not clearly err in declining to evaluate the claim.¹⁶ A log's descriptions mean something only against the claims and defenses in the case, and the judge presiding over that case has them in view.

An exam stem that reports a served log and a requester demanding in camera review is testing two facts: what the log says and what the requester says about it. If the entries show the elements of the protection and the requester names no document to doubt, the court may decide on the log. If the entries are thin, or the requester ties a doubt to particular entries, the court may inspect the documents, and in a large set it may delegate the review or sample.