New York Law Journal | February.02.2018
Privilege logs are loathed by the attorneys who create them, the judges who review them, and the clients who pay for them. And the only thing worse than creating a privilege log is re-creating a privilege log. While we can’t promise a pain-free process, an organized approach upfront will help avoid this judicially-mandated infliction of pain. Follow these tips for outlining the law, log format options, and your internal processes and you’re more likely to get your log right the first time.
Do not underestimate the value of well-planned privilege review instructions. Counsel are often eager to jump right into the review process, which can lead to inadequate (or no) instructions. Think through the range of issues you’ll likely confront. To that end, avoid “re-using” old instructions: privilege law varies by jurisdiction and issues differ based on your client and/or the types of documents you’ll encounter. Below are several factors to consider when identifying the relevant law:
Choice of Law. Choice of law issues frequently arise in federal court, particularly MDLs and transferred cases. Recall that federal courts sitting in diversity apply the choice-of-law rules of the states in which they sit. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). However, when a case is originally filed in a proper venue and then transferred, the choice-of-law rules of the transferor jurisdiction apply. Van Dusen v. Barrack, 376 U.S. 612 (1964).
Corporations. When your client is a corporation, special issues arise in defining the “client” for attorney-client privilege purposes. Courts apply two tests:
• Subject Matter Test: Applicable in most jurisdictions, including New York. The privilege may apply if the communications “concern matters within the scope of the employees’ corporate duties,” and the employees understand the discussions with counsel occurred so “the corporation could obtain legal advice.” Upjohn Co. v. United States, 449 U.S. 383, 394 (1981).
• Control Group Test: Minority and more restrictive approach. Protection afforded to communications by “decisionmakers or [those] who substantially influence corporate decisions.” Consolidation Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250, 257 (Ill. 1982).
Legal vs. Business Advice. Attorneys all too often categorically treat communications between in-house counsel and corporate employees as privileged. However, in-house counsel often serve a “dual role of legal and business advisor.” United States v. ChevronTexaco, 241 F. Supp. 2d 1065, 1073 (N.D. Cal. 2002). Therefore, a nuanced approach is advised. You should assess “whether a particular communication was made for the purpose of securing legal advice (as opposed to business advice).” Id. Under New York law, to qualify as privileged, the “predominant purpose” of the communication must be to obtain legal advice. Koumoulis v. Indep. Fin. Mktg. Grp., 29 F. Supp. 3d 142, 146 (E.D.N.Y. 2014).
Joint defense/common interest privilege. The joint defense/common interest privilege is an exception to the rule that a party waives privilege by disclosing confidential information to third parties. Under New York law, the exception applies where the parties share a common interest but is limited to communications related to legal advice in pending or reasonably anticipated litigation. Ambac Assurance v. Countrywide Home Loans, 27 N.Y.3d 616, 628 (2016). Counsel should note though that this exception varies considerably by state.
Self-critical analysis privilege. The self-critical analysis privilege treats as confidential corporate communications intended to assess compliance with laws and regulations. Many federal courts, including the Second Circuit, have not yet adopted it. See Martinez v. Metro-N. Commuter R.R., 2017 WL 4685114, at *2 (S.D.N.Y. Oct. 18, 2017). Notably though, even where adopted, the privilege only applies to the evaluation itself, not the facts analyzed. Id. at *4.
Document-by-document privilege logs are time consuming to create and review. But privilege logs can come in all shapes and sizes. Local rules, model ESI orders, or judicial preference may be instructive. Consider these non-traditional options when negotiating your privilege log.
Categorical logs. Some jurisdictions, including New York, have local rules promoting the use of categorical logs. Under Rule 11-b of the N.Y. Rules of the Commercial Division of the Supreme Court, parties may use “any reasoned method of organizing the documents” into categories rather than creating a document-by-document log. Refusal to adopt a categorical approach may allow a party to shift costs, including attorney fees.
If a categorical log isn’t appropriate for all of your privileged documents but could be used for some (e.g., privilege is indisputable or descriptions will be identical), consider a “hybrid” log where a subset of documents are logged categorically. See generally Hon. John M. Facciola & Jonathan M. Redgrave, “Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework,” 4 Fed. Cts. L. Rev. 19 (2009).
Metadata logs. Once considered “alternative,” metadata logs (e.g., logs that include email author, recipient, date, and subject) are becoming mainstream. The Seventh Circuit eDiscovery Pilot Program’s case management order proposes identifying “as much objective metadata as is reasonably available” along with the privilege and/or protection being asserted. As for the dreaded “narrative description,” it proposes describing the “categories of ESI” withheld rather than individual descriptions. Similarly, the Western District of Washington’s Model Agreement Regarding Discovery of Electronically Stored Information proposes a metadata log for ESI, including additional information only if metadata is “insufficient” for evaluating privilege claims.
If the parties agree metadata-only logs are sufficient, be careful because metadata may not include enough information to assess privilege and you don’t want to re-review documents. Consider including a description in circumstances with a generic email subject or document title—you’re better off drafting the description on the first review than going back and re-reading. You’ll also need to manually include metadata for non-ESI.
You’ll inevitably encounter surprises once you dig into the documents. Identify as many potential issues as you can to curtail a re-review—some potential issues and ideas are outlined below:
Timing. Identify when you’ll produce your log. Ensure that your workflow allows time for review as an unreasonable timeline may result in the dreaded “re-review.”
Privilege review process. Create a clear review hierarchy. Have first-level reviewers screen documents for privilege (e.g. identifying attorney names) and direct to a pre-designated privilege screening team. You can also use artificial intelligence alongside your review team to help identify and categorize documents. Identify a protocol for evaluating “close calls”—whether that’s a specific team member, the client, or a committee. And provide guidance on common close calls (e.g., “FYI” emails to attorneys or general references to “legal” or “counsel”).
Efficiencies. Negotiate using email threading to log the most inclusive emails and treating post-complaint emails with outside counsel as per se privileged. When drafting narrative descriptions, set standards and provide examples to promote consistency. Or consider using narrative automation tools: technology has reduced narrative drafting time by more than 50 percent in just a few years.
Redactions. Come to early agreement on inclusion of privilege log redactions. As with privilege calls, create a protocol for the redaction process (e.g., have first-level reviewers mark redactions and second-level reviewers apply). If your data includes a large number of spreadsheets or PowerPoints, negotiate native redactions—it will reduce costs and potential challenges. If redacting for personal information as well as privilege, decide how to distinguish the redactions.
Third parties. If you know third parties received documents and/or communications, identify them and determine whether disclosure waives privilege. Savvy eDiscovery professionals can isolate documents that include third parties.
Distribution lists. If your client utilizes distribution lists, identify the individuals on those lists as soon as possible. And recall distribution lists change over time: determine whether your client maintains historical membership information.
Attachments to privileged emails. Attorneys all too often presume that attachments to privileged emails are themselves automatically privileged. They are not. See, e.g., Leonen v. Johns–Manville, 135 F.R.D. 94, 98 (D.N.J.1990). Independently assess privilege for these documents.
Miscellaneous quality control. Review a sample of the documents and log entries. Look at the log in its entirety to see trends that may cause issues (ex. poor descriptions or blanks). Is there any privileged information on the log (ex. in email subject lines)? Put attorney names in bold font and use metadata to identify likely challenges (ex. communications without attorneys or including third parties). Confirm redacted documents are produced.
Rule 502(d) orders. Federal Rule of Evidence 502(d) Orders should be used in every case to protect against inadvertent disclosure. But 502 should also be used to protect against advertent production. For example, if your client elects to produce potentially privileged documents sent to distribution lists due to the cost of analyzing recipients of historical distribution lists, a 502 order can be used to protect against waiver in present and future cases. Chevron v. Weinberg Grp., Misc. Action No. 11-409, at *1 n.1 (D.D.C. Oct. 26, 2012).
Marc R. Shapiro is an associate in Orrick, Herrington & Sutcliffe’s New York office, where he specializes in class action and multi-district litigation. Kelly M. Cullen is an eDiscovery Career associate in the firm’s Global Operations & Innovation Center in Wheeling, W. Va.
Reprinted with permission from the February 2, 2018 edition of the New York Law Journal © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - [email protected].