Rule 26(b)(5) of the Federal Rules of Civil Procedure provides that, when a party withholds information otherwise discoverable by claiming the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(id.) (emphasis added).
But what exactly is a sufficient description such that opposing counsel will be able to assess the validity of a claim of privilege? And, when is an in camera review to determine the validity of a privilege claim appropriate? Although the sufficiency of a description is necessarily subjective, and in camera review discretionary, a recent decision from the Northern District of Illinois is a worthwhile read for anyone confronting these thorny subjects.*
Washtenaw County Employees’ Retirement System v. Walgreen Co., 2020 WL 3977944 (N.D. Ill. July 14, 2020) is a securities fraud class action lawsuit involving allegations that Walgreens and its former Chief Executive and Chief Financial officers violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. During discovery, lead plaintiff moved for an in camera inspection of 75 documents listed among 5,700 identified on defendants’ log as privileged. Plaintiffs argued that the Court’s review of the documents was necessary because it would guide the parties’ approach to other privileged claims. Defendants, however, asserted an in camera review was not necessary as Plaintiffs failed to establish a “well-founded basis for challenging the logs’ privilege descriptions,” which were the result of thousands of attorney hours.
In reaching its decision not to review in camera the documents at issue, the Court devoted significant effort to the history of the attorney-client privilege and the obligation to log privileged communications withheld from production. The Court then observed that the sufficiency of a log description is a delicate balance. Indeed, it is difficult to describe “the basis for the privilege with sufficient detail yet without disclosing what the legal advice was. Preserving the privilege requires recognizing that there are limits to the specificity that courts ought to require in a privilege log.” The Court went on to hold that entries on a log that use the word privilege without any description of what the communication was about, is “unacceptable.” However, descriptions that describe, at least, the subject matter to which the legal advice was directed “come closer to being sufficient, and in many cases will be sufficient.” In sum, a privilege log “need only provide a form of penultimate proof, by way of a short summary statement that conveys at least a basis for the Court to believe that the content of the communication is privileged.”
The Court further observed that while it is within its discretion to engage in an in camera review, this, too, is fraught with challenges. For example, courts deciding issues concerning privilege log descriptions “can reach two correct yet contrary conclusions based on identical fact patterns.” (Walgreens, 2020 WL 3977944 at *3 (citing Surgery Ctr. at 900 N. Michigan Ave., LLC v Am. Physicians Assurance Corp., 317 F.R.D. 620, 629 (N.D. Ill. 2017).
Here, the Court was tasked specifically with determining whether to perform an in camera review of six categories of communications: (i) those between non-attorney employees; (ii) those copying in-house counsel; (iii) those disseminated “widely” within the company and through distribution lists; (iv) those “reflecting,” “circulating” or “discussing” legal advice; (v) those Plaintiffs claim are simply not privileged; and (vi) attachments that were withheld.
The Court declined to exercise its discretion to review in camera the 75 documents at issue, but examined the categories of log entries included in the motion. In assessing the privilege log descriptions for the first five categories, the Court determined that the Defendants’ privilege log entries sufficiently established the documents and communications concerned legal advice or legal issues relevant to the matter and were properly logged. With respect to the “withheld attachments” category, the Court found that Defendants’ failed to include in the log a separate description providing the legal basis for withholding the attachments. And so, because attachments need to have their own privilege bases in order for them to be properly withheld under a claim of privilege, the Court directed the parties to meet and confer to determine an approach that supplies Plaintiffs with the information necessary about the withheld attachments.
The attorney–client privilege is a deeply rooted doctrine that protects from disclosure privileged communications. And, the importance of creating a privilege log with sufficient particularity such that opposing counsel can assess the validity of the asserted privilege cannot be overstated. This case is an important reminder that inadequate, vague or generic privilege log descriptions can put the privilege in peril and practitioners must take an organized and methodical approach in formatting specific descriptions for withholding privileged documents. By doing so, one may avoid defending against a motion to compel for in camera review.
*It is important to consult the local rules of the Court in which you are appearing. For example, in the Southern and Eastern Districts of New York, Local Civil Rule 26.2, Assertion of Claim of Privilege, is applicable.