By Mark A. Stafford and Candace S. Friel, Nelson Mullins Riley & Scarborough, LLP
We sometimes think that the drafters of N.C. R. Civ. P. Rule 26(b)(5) sought only to test the pain thresholds of lawyers: Privilege logs are the bane of existence for most attorneys—expensive, time consuming and generally a nuisance. In practice, few of us focus on privilege logs early in the process of obtaining and reviewing client documents, but failing to do so can be dangerous.
Without using the term “privilege log,” N.C. Rule 26(b)(5) (as well as the cognate federal rule) requires that claims of attorney-client privilege, work product, and joint defense or peer review privileges must be invoked at the time of service of the discovery responses or “when the party withholds the information.” This is often made express in case management orders that require a party to serve a privilege log “contemporaneously with its objection.” E.g., Window World of Baton Rouge, LLC v. Window World, Inc., 2019 NCBC LEXIS 54, *89 (N.C. Sup. Ct. Aug. 16, 2019). Not doing so can be deemed a waiver of the privilege.
Regardless of when they are created, privilege logs can be costly undertakings. We have seen cases where a log was more than 150 pages and over 3,000 entries long. Despite the possibility of such voluminous logs, remember that if utilizing a paralegal to assist with the initial compilation of a privilege log, it is the attorney’s duty to review and ensure that privilege claims in logs meet appropriate standards. Further, early planning (such as obtaining from the client names of all their outside counsel during the relevant period, not simply counsel in the case) is critical. E-discovery software with keyword and sorting capabilities, can ameliorate the manual efforts required in entering such data as custodian, date, and recipient information. Nevertheless, in matters involving voluminous discovery, the costs of the e-discovery process can quickly approach if not exceed six figures. Often, the only “solution” to this problem is to warn the client.
When utilizing one of the popular e-discovery platforms such as Relativity or Everlaw, one can include identifying “tags” for initial reviewers to flag the privilege being asserted, as well as a non-privileged description of the nature of the document being redacted or withheld. Both documents produced in redacted form (because they are only partially privileged) and documents withheld in their entirety must be logged. For documents produced in redacted form, only the protected text should be hidden, leaving other information (such as to/from/cc/subject fields in emails) visible, all in order to allow the opposing party (and the court) to discern the basis for the claim. In addition, inclusion of all such “tags” and descriptions in the e-discovery database, while time consuming during the review, saves countless hours in the compilation of the final log, because such fields can be directly exported and incorporated into an Excel-type draft.
Under Rule 29, counsel may enter into agreements to streamline this process. For example, the parties may stipulate to specific electronically stored information (“ESI”) “protocols” to narrow the universe of potential documents. They may further agree that communications between the client and counsel of record, at least those created from the onset of the lawsuit, need not be logged. There are also times when the parties may agree that communications between in-house counsel and client employees need not be logged, though there may be resistance when in-house counsel wears multiple hats, such as serving simultaneously as compliance officer. Evans v. United Servs. Auto. Ass'n, 142 N.C. App. 18, 32, 541 S.E.2d 782, 791 (2001). Of course, those of us defending claims brought by individuals should remember that our friends in the plaintiffs’ bar are not known for making life easier for our clients.
One should be mindful that problematic tensions may exist in terms of timing—tensions that can spring upon you just as you think case scheduling and ESI procedures are nearly set: in federal courts, the Business Court, and in some superior court districts, counsel must submit proposed scheduling orders early in the case. Courts are also increasingly requiring early joint filing of proposed ESI protocols to govern the electronic production. Where the rules permit service of discovery requests in the first weeks of a case (with their resulting deadlines), you could be faced simultaneously with having to negotiate scheduling and ESI protocols (with lengthy search terms and Boolean operators), agree on narrowing custodian files to be searched, and obtain gigabytes or terabytes of client data which necessarily cannot be reviewed (under the yet-to-be-decided protocols) much less logged in a 30-day (or even 60-day) response period. There is seldom a perfect solution to this conundrum, but rather than stymie production altogether or seek repeated extensions, parties should, at a minimum, consider agreeing to permit privilege logs to be exchanged on some reasonable date after service of the written responses.
The sufficiency of descriptions on privilege logs is the primary source of disputes. This issue was recently addressed by Business Court Judge Conrad in Kelley v. Charlotte Radiology, P.A., 2019 WL 8109486 at * 4 (N.C. Sup. Ct. May 15, 2019). In Kelley, Defendant challenged the adequacy of the plaintiff’s log, arguing that the descriptions were “obtuse and uninformative.” The log contained dates, authors, and recipients, with descriptions such as “asking and answering questions re litigation engagement” and “exchange between client re information furnished to lawyer.” The Court found that this phrasing was a sufficiently “short description of the subject matter, and the type of privilege asserted.”
Judge Conrad also noted that even if the log had been inadequate, the appropriate remedy would not have been to declare a waiver but for the Court to conduct an in camera review of the challenged materials. The court stressed that Kelley’s counsel had made a “good-faith effort” to describe the materials and in fact revised his log in response to defendant’s concerns.
Not surprisingly, judges do not always apply identical philosophies on the adequacy of privilege log descriptions. For example, somewhat in contrast to Judge Conrad, Business Court Judge Bledsoe, in Window World of Baton Rouge, supra, found that entries describing communications simply as "regarding" or "related to" "legal advice" were insufficient. Judge Bledsoe observed that 95 of 150 entries included substantially similar descriptions and that “[p]resumably, all [150 Sample Log Documents] are regarding or relating to legal advice.”
Litigators should also remember that attorney-client privilege and the work product doctrine are technically distinct grounds for withholding production. While attorney-client privilege attaches only to communications where legal advice is sought, conveyed or implied and where no third party is involved, the work product doctrine protection extends to anything prepared by a party or its representative (not just attorneys) in anticipation of litigation, which is not shared with a third party, including even public materials gathered at the request of counsel, and non-substantive communications. As to work product, the date of the document is critical for invoking the doctrine, since the timing of the communication vis-à-vis the beginning of litigation is vital to meeting the doctrine’s “in anticipation of litigation” requirement. In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 679, 663 S.E.2d 921, 929 (2008). The test boils down to this: But for the threat or existence of litigation, would the document have been created?
In Kelley, defendant also argued a waiver of work product immunity occurred when that particular ground was not specifically listed as to certain documents. The court rejected the contention, but only because Kelley amended the log to assert the doctrine prior to the filing of the motion to compel.
In many respects, the Kelley analysis merely reflects that strong historical propensity of North Carolina judges not to find privilege and work product waivers absent egregious neglect or a complete failure to rectify shortcomings. Again, however, practitioners should keep in mind that the approach that Judge Conrad approved in Kelley will save you only if you timely served some sort of log in the first place. Moreover, if additional responsive documents are discovered, a party should timely serve a supplemental privilege log to preserve applicable privileges.
In sum, we dare say that there has never been a lawyer who has enjoyed preparation of privilege logs—or any client who was pleased to pay for the work. To minimize the costs, one should act early in planning and beginning execution of the logging process. Further, multiple entries saying “email regarding case” simply won’t cut it, but the descriptions need not consist of wordy explanations. Finally, if you see a dispute brewing over the adequacy of your log, consider objectively whether an amendment before the court is involved is wise—standing firm until a motion to compel ruling may be necessary, but, as with most challenges the litigator faces, you should constantly be alert to the risks.
