Logging Withheld Material

Logging Withheld Material

Withholding is not silence. A party that holds back information it would otherwise have to produce, because the information is privileged or is trial-preparation material, must make the claim expressly and must describe the nature of the documents, communications, or tangible things withheld. The description has to let the other parties assess the claim without revealing the protected information itself.¹ A bare objection that material is privileged does not meet that duty. “Trial-preparation material” is the rule's term for work product: tangible material, or its intangible equivalent, prepared in anticipation of litigation or for trial.² The earlier sections covered what these protections reach and how a court can set terms for discoverable material. This section covers the step that comes first in practice, which is telling the other side that something is being held back, and why. Protection that exists on paper still has to be asserted, and the assertion has a prescribed form.

The requirement closes a gap the rules once left open. Before 1993, a producing party could simply leave privileged or work-product material out of its production. That gave the party the last word on the scope of its own privilege, because an opponent who never learned a document existed had nothing to challenge. A 1993 amendment to Rule 26(b)(5) 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 that language created the convention of the privilege log.³ Each half of the requirement does its own work. The express claim turns silence into notice, so the opponent and the court know that a category of material exists and was withheld, not overlooked. The description gives the opponent something to test: an entry saying only “privileged” offers nothing to evaluate, and an entry that revealed the contents would destroy the protection it claimed. The rule's standard, enough to assess the claim and no more, runs between those two failures.

Work product shows why the log matters. Material prepared by or for a party in anticipation of litigation need not be produced, but it must be logged, and the requesting party can overcome the protection by demonstrating substantial need for the information. Substantial need does not extend to counsel's mental impressions concerning the litigation.⁴ The two features depend on each other. A requesting party cannot show need for a document it was never told exists, so the log makes the showing possible, and the producing party keeps its protection because the entry describes the document without disclosing what it says.

Omitting the log is how parties lose protection they otherwise held. In the Rhoads Industries case, a young associate withheld many documents and files as privileged without making a privilege log, and the court later held that the failure waived the privilege for all of that material.⁵ The rule's design explains the result. An opponent cannot assess claims that were never described, and a party that gives the opponent nothing to assess has not made the claim in the form the rule requires.

Chevron Corp. v. Donziger shows when a court is most ready to find that a failure to log forfeits privilege. The court reasoned toward forfeiture of any otherwise applicable privilege, and it began with Donziger's knowledge. He knew from earlier litigation, in which his failure to submit a privilege log under the same rules produced a waiver or forfeiture ruling, that noncompliance could cost him the privilege. In this case he was warned of a potential forfeiture ruling when Chevron's motion papers urged one. He still failed to comply, failed to seek an extension of time, and failed to seek any dispensation from the rules. He made no colorable attempt to comply with the court's orders, even as to documents for which no claim of privilege was or responsibly could have been asserted.⁶

The court also found that his conduct on privilege claims, as in the earlier case, was undertaken for tactical advantage. He never posted a supersedeas bond, which would have stayed enforcement of the money judgment as of right, and he sought no stay of enforcement on any other basis. He did ask the district court to stay certain discovery from a nonparty witness and for a broader protective order, and he appealed the denial. In the more than three months since the court's ruling, though, he had not sought a stay or an injunction pending appeal from the Circuit. To the court, his refusal to comply with discovery obligations and court orders looked like an attempt to obtain by self-help the stay of discovery that the court had denied and that he had not sought from the Circuit.⁷

Rhoads Industries and Donziger sit at different points on one line. In Rhoads, as reported, a bare omission waived protection for everything withheld. Donziger adds the facts that leave a court least inclined to forgive: knowledge of the requirement from earlier litigation, a specific warning, no request for more time, no colorable effort to comply, and conduct that served the party's tactical interests. The step he skipped was cheap. A party that needs more time for a large production can ask for an extension or other dispensation before the deadline passes, and Donziger asked for neither.

Counsel who signs discovery papers also makes a Rule 26(g) certification, the first control on discovery abuse: the paper is warranted by law and has a proper purpose, and disclosures are complete and correct when made.⁸ A privilege log is that kind of paper, which is one more reason to confine its entries to claims counsel can defend.

The log reaches only privileged and trial-preparation material, and that limit separates two kinds of confidentiality the earlier sections kept apart. In-house counsel's memorandum written after a threat of suit goes on the log, because it is protected material the producing party is withholding. A company's market studies and design files may be commercially sensitive, but they are neither privileged nor prepared for litigation, so the company produces them. If its interest in secrecy is serious enough to show good cause, it asks the court for an order under Rule 26(c)(1)(G) that a trade secret or other confidential research, development, or commercial information not be revealed, or be revealed only in a specified way.⁹ Two errors follow from blurring the line. One is logging a trade secret as though it were privileged, which claims a protection that does not exist. The other is treating a litigation memorandum as merely confidential and producing it, which hands over protected material the party could have withheld.

Step one does most of the work on exam stems, because the label confidential does not place a document in either protected category. Logging asserts protection when material is withheld, but protected material is sometimes produced anyway, and the sections that follow explain what that does to the protection.