Guest Blog by Shannon Capone Kirk, E-Discovery Counsel at Ropes & Gray and Adjunct Professor of E-Discovery Law at Suffolk Law School; Emily Cobb, Discovery Attorney at Ropes & Gray; and Matthew Gens, Associate at Ropes & Gray. See columnists’ disclaimer at end.
It’s a bottomless well
It’s a little overkill
It’s the end of a dragon’s tail
That’s whipping around our heels
But we don’t bow
We make no deals
If we go down, we go
Down on our own shield
-Jakob Dylan, Down On Our Own Shield, on Women & Country (Sony 2010).
Come on in – Welcome to our Rockin’ Priv Party
The last time I wrote an article for Ralph, I mercilessly used Bob Dylan’s Brownsville Girl as a call to arms for more art in discovery, more finesse, and a move away from boilerplate document requests. Now, I reference his son, Jakob Dylan. It’s strange how the master’s son, a master in his own right, has also written a lovely song about discovery. Ok, perhaps the song is really about lost love or something more existential than civil litigation, but still, when I hear the verses above I also hear the angst of lawyers everywhere toiling over unending, document-by-document privilege logs, those bottomless wells, that unnecessary overkill, a dragon’s tail whipping around our heels and tired heads. Oh, the mindless dredge. And do we bow or make deals to limit our suffering? No, we do not bow nor make any deals. We go down, we go down on our own shields, our mouths full of stale coffee, our eyes red from electronic review, our keyboards full of crumbs. We need to control that dragon’s whipping tail.
Some of us do try. I’ll introduce my colleague and co-author, Emily Cobb, Discovery Attorney, who tries almost everyday to tame a dragon—those scaly, angry, hot-breathed, fire-breathing, never-ending privilege logs. Across a variety of cases, the arguments used to calm this beast have been the same, the volume of ESI is too great, the burden to log individual documents too large, there are better ways, technological advances even, that allow us to short-circuit the drudgery of a 30,000 plus line excel spreadsheet. Most of us who try these arguments, however, usually fall upon these usual and predictable refrains from our adversaries:
- There is no support for a categorical privilege log.
- This court requires you to log everything. It has always been that way.
- Rule 26 requires each and every item to be logged in every case.
- We are entitled to know why each document is being withheld, who wrote it, to whom it was sent, the subject matter, and the basis for the privilege claim.
- This is how everyone has always done it and I don’t want to be a guinea pig in accepting something short of what my client is entitled to.
- We want everything logged.
This article is a response to the most common refrains, that there is no support for a categorical privilege log and that Rule 26 requires each and every item to be logged. Neither of these statements is true. And since this is not a law review article or a motion before a court, and, frankly, because this is our Rockin’ Priv Party, we aren’t inviting citations to contrary case law or otherwise well-regarded secondary authority, which we acknowledge exist and which give our opponents ammunition. You know, those Debbie Downer cases and opinions requiring document-by-document privilege logs in the face of some pretty darn good arguments for categorical privilege logs.
To this authority, we’re calling on Queen Gaynor to Keyboard Cat them on out the door, go on now go, walk out the door, just turn around now, ‘cause you’re not welcome anymore. Gloria Gaynor, I Will Survive, on I Will Survive: The Anthology (Polydor Records 1998) (1978). Yeah, yeah, yeah, we know you’re there and you’re knock knock knockin’ to come in, but, too bad so sad, we’re staying up late and you can’t hang. Alanis Morrisette has some words for you, “Like any uncharted territory, [we] must seem greatly intriguing…But this is not allowed. You’re uninvited. An unfortunate slight.” Alanis Morissette, Uninvited, on City of Angels: Music from and Inspired by the Motion Picture (Reprise Records 1998).
We are not saying that demands for document-by-document privilege logs are always wrong. Indeed, there are certain scenarios where demanding a document-by-document privilege log is necessary, warranted, and appropriate. So don’t get rid of all your Visine yet. However, for the vast majority of large civil litigation, these logs are – in a word- “useless.” 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, 34 (2010). Fighting words? Maybe, but certainly in most cases some form of categorical privilege log is appropriate, should be negotiated at the meet and confer, and agreed-upon without the court’s involvement (but for the court’s ultimate blessing of a stipulation). So roll up your sleeves and start thinking about some categories! Here we go.
Let’s first debunk the idea that there is no support for categorical privilege logs. Ahem. A categorical privilege log is hardly a novel idea and we continue to be surprised at our adversaries who don’t embrace them, or at least acknowledge them. There are a number of good articles on the subject that explore the concept and history in a fair amount of detail. For example, if you’re living E-Discovery and you’re not living under a rock, then you probably already know about Facciola and Redgrave’s article. Id. If you don’t live E-Discovery and haven’t yet heard of it, we’re jealous. You probably have an exciting life. The Facciola-Redgrave article is a full-scale historical lesson on privilege logs and a persuasive argument in favor of categorical and other alternatives to item-by-item privilege logs.
Michael Romey and David Johnson were writing about category logs back in 2006, and point out that, though item-by-item logs may be a hard habit to break, lawyers shouldn’t get addicted like Kelly Clarkson to them; they are not a statutory requirement. See Michael G. Romey & David D. Johnson, Logging Rights, L.A. Law., March 2006, at 31. To the extent you are already addicted; it’s time to draw upon your inner Aerosmith and get that monkey off your back. “[A] wide variety of methods are permissible to support a claim of privilege or protection-as long as the methods provide information that is sufficient for the court to evaluate the privilege or protection claim.” Id. at 34. Romey and Johnson also point out: “Category privilege logs are not as well known as document-by-document privilege logs, but they have been in use, at least occasionally, for decades.” Id. Moreover, there’s good reason to avoid spitting out item-by-item logs without considering their content. Sometimes the logs themselves could do more harm than good, for example by revealing litigation strategies through patterns of communication or by revealing the topics upon which the client sought legal advice from counsel. Douglas C. Rennie, Why the Beginning Should Be the End: The Argument for Exempting Post-Complaint Materials from Rule 26(b)(5)(A)’s Privilege-Log Requirement, 85 Tul. L. Rev. (forthcoming 2010) (manuscript at 37-38).
Looking for more support? Step into my DeLorean and join me on a trip back to 1993. Clinton became our 42nd President, the Bulls three-peated, blackberries still meant a kind of fruit and Unforgiven won 4 Oscars. That same year, the Advisory Committee amended Rule 26 to include subdivision (b)(5) requiring a producing party to “notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection.” Fed. R. Civ. P. 26(b)(5) Advisory Committee’s Notes (1993). The Notes declined to dictate the contents of that notification. Instead, they acknowledged that the manner of asserting the privilege or protection may take different forms, “[d]etails concerning time, persons, general subject matter etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.” Id. (emphasis added).
Still not sold? Time for every lawyer’s favorite friend and our biggest supporter, the case law. As in so many other E-Discovery areas, once again the Southern District of New York leads the charge with SEC v. Thrasher, No. 92 CIV. 6987 (JFK), 1996 WL 125661, at *1-2 (S.D.N.Y. Mar. 20, 1996). One author has suggested that the “Thrasher Approach” might be codified as part of Rule 26 to provide for categorical privilege logs in certain circumstances. See Rennie, supra (manuscript at 50-52).
The Thrasher Court allowed a categorical privilege log, despite the plaintiff SEC’s request for an item-by-item log. When confronted with a “voluminous” amount of correspondence between counsel representing various defendants, which the Court found would likely be protected by the attorney-client privilege and/or work-product doctrine anyway, the Court agreed with the defendant that the exercise in detailing each withheld document in a log would simply be a waste of effort. Thrasher, 1996 WL 125661, at *1. The Court laid out a test for determining when a categorical log might be permissible: when, “(a) a document-by-document listing would be unduly burdensome and (b) the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing whether the privilege claim is well grounded.” Id. The Thrasher Court noted the defendant’s plausible assertion that an item-by-item log for such a document volume would be “long and fairly expensive,” id., and that the SEC made “no effort to explain what benefit it [would] gain from a detailed document-by-document . . . log,” id. at *2, namely why it might need such requested details to determine likelihood of privilege. Additionally, the Court noted that Fed. R. Civ. P. 26(b)(5) specifically provides that logs are not intended to reveal information that would itself be privileged or protected, and took note that the defendant here suggested “that disclosure of the pattern of his attorney’s consultations with other counsel might reveal some aspects of his litigation strategy.” Id. at *1.
Category logs are not a free pass, however. The Court in Thrasher did require the defendant to provide additional information that might be pertinent to the SEC’s evaluation of privilege:
1) an identification of the time period encompassed by the withheld documents;
2) a listing of the individuals who were authors or addressees or were copied on the documents;
3) a representation by counsel as to whether all of the documents either (a) were prepared to assist in anticipated or pending litigation or (b) contain information reflecting communications between (i) counsel or counsel’s representatives and (ii) the client or the client’s representatives, for the purpose of facilitating the rendition of legal services to the client.
Id. at *2.
Thrasher is emblematic of the landscape of orders in which courts have allowed categorical privilege logs and is an important precedent for any party seeking to defend the use of category logs. Similar cases typically involve a vast amount of documents. Often at issue in such cases are documents that would be uncontroversially privileged—such as e-mails with lawyers—where a court may doubt that the opposing party truly needs a document-by-document description to be able to evaluate whether the privilege or protection is properly asserted. In addition, courts sometimes recognize that in certain cases, detailing each communication that counsel had with certain individuals might run afoul of work product protection.
The overarching theme of these orders is to ensure that if a categorical log is used, opposing counsel must be able to adequately evaluate whether the privilege or protection is properly asserted. As such, these courts tend to ensure that the categorical log includes enough information to make such an evaluation possible. The requirements typically include: time periods of documents (especially for work product considerations); numbers of documents per category; listing of individuals on the documents across the category; a representation that such documents have been kept confidential; and a representation that the documents are protected under either the attorney-client privilege or work-product doctrine. Much of this was required, for example, in a case emerging from the sands of Nevada, Fifty-Six Hope Road Music, Ltd. v. Mayah Collections, Inc., No. 2:05-cv-01059-KJD-GWF, 2007 WL 1726558, at *6-8 (D. Nev. June 11, 2007). In Six Hope, the Court relied on 1993 Advisory Committee Notes to Rule 26(b)(5) in holding that if e-mails with counsel were “in the hundreds or thousands,” id. at *6, then requiring a privilege log for each e-mail “would be unduly burdensome and not serve the legitimate purposes of discovery under the Fed.R.Civ.Pro. 26.” Id. at *8. The Court allowed a categorical privilege log so long as counsel made the requisite affirmations and information about volume and recipients/authors were disclosed.
On October 8, 2009, Judge Facciola approved a Rule 26(f) Stipulation Regarding Discovery Protocols between the parties in In re Rail Freight Fuel Surcharge Antitrust Litigation. Rule 26(f) Stipulation and Order Regarding Discovery Protocols, In re Rail Freight Fuel Surcharge Antitrust Litig., No. 1869 (D.D.C. Oct. 8, 2009). The Stipulation is not only a good example of cooperation between the parties, but also a good example of improving upon the concept of categorical privilege logs and ways to modify substantive privilege review to alleviate the sometimes crushing costs associated with this phase of review. In the In re Rail Stipulation, starting on page 21 (section IV, “Claims Of Privilege”), the parties set forth their agreement to “limit the cost of a privilege review” by producing automated metadata-generated privilege logs, based upon search hits to counsel names and certain privilege terms. Id. at 21. If documents on this automated log hit on certain terms, such as outside counsels’ names during a specific time period, the documents “need not be reviewed before being logged and reviewed.” Id. at 25.
The In re Rail Stipulation contains laudable ideas on how to improve upon the privilege log debacle. But, if you’re still looking for authority to even broach the concept of non-traditional categorical privilege logs, we’ve listed numerous cases below. While this list is not as rockin’ (or complete) as Judge Grimm’s 12-page Victor Stanley II chart o’ cases, we like to play the dramatic instrumental ending to Guns N’ Roses epic November Rain while we read it. After all, it is November and we like when rockers mix electric guitars with violins and pianos and use images of caskets and rain to make their point, so we will too. As you can see from this orchestral finale, categorical privilege logs have been approved for quite some time all over the country and thus the concept is not revolutionary. The next step is to not only use categorical privilege logs, but to improve on the concept by infusing a privilege log plan with ideas such as those found in In re Rail (batching out of review altogether documents that hit on obvious privilege names/terms, for example).
Nothin’ lasts forever, even cold November Rain. Guns N’ Roses, November Rain, on Use Your Illusion I (Geffen Records 1991). You said it, Axl! Nothing lasts forever, even cold traditional privilege logs. You all know the ending of November Rain and if you don’t, the video is on YouTube with 21,556,729 hits. Guns N’ Roses, November Rain, YouTube (Dec. 4, 2009), http://www.youtube.com/watch?v=8SbUC-UaAxE. Starting at minute 7:01 of the 9:08 long video….
2009 Sprint Commc’ns Co. v. Big River Tel. Co., No. 08-2046-JWL, 2009 WL 2988446, at *2-3 (D. Kan. Sept. 2, 2009) (While the Court found the plaintiff’s categorical log to be insufficient, it only ordered as a consequence more detailed categorical entries to allow the defendant to better assess privilege claims, not by contrast, an item-by-item traditional log); In re Motor Fuel Temperature Sales Practices Litig., No. 07-MD-1840-KHV, 2009 WL 959491, at *3 (D. Kan. Apr. 3, 2009) (in allowing a categorical privilege log for post-litigation attorney communications, the Court explained, “individually logging thousands of privileged attorney communications would be immensely burdensome and have little, if any, benefit to plaintiffs.”).
Slash on guitar next…with vocal chants, ”you’re not the only one..”
2008 Orbit One Commc’ns, Inc. v. Numerex Corp., 255 F.R.D. 98, 109 (S.D.N.Y. 2008) (holding that counsel for the plaintiffs likely possessed a “large number” of attorney-client or work product documents, and thus to help “lessen the burden,” counsel could “provide a categorical privilege log rather than a traditional, itemized privilege log.”); Republic Servs. Inc. v. Am. Int’l Specialty Lines Ins. Co., No. 07-21991-CIV, 2008 WL 4691836, at *3 (S.D. Fla. Oct. 21, 2008) (allowing categorical privilege log for five specific categories of documents so long as the log was supported by affidavits and included the volume and date ranges of withheld documents); CC Aventura, Inc. v. Weitz Co., LLC, No. 06-21598-CIV, 2008 WL 828117, at *5 (S.D. Fla. Mar. 27, 2008) (ordering a privilege log that “lists with specificity each communication or category of communications . . . as to which the . . . Defendants assert a privilege” and noting as an example of a potential category communications on certain dates between counsel and insurance carrier) (emphasis added).
Axl Rose on piano next….still chanting, “You’re not the only one…”
2007 E.B. v. N.Y.C. Bd. of Educ., No. CV 2002-5118(CPS)(MDG), 2007 WL 2874862, at *8 (E.D.N.Y. Sept. 27, 2007) (holding that defendant had not waived privilege with its categorical privilege log because the court had previously ruled “that the Defendants need not separately identify every document on the privilege log and authorized the grouping of similar documents”); In re Apollo Group, Inc. Sec. Litig., No. CV-04-2147-PHX-JAT, 2007 WL 778653, at *8 (D.D.C. Mar. 12, 2007) (suggesting that the parties engage in discussions to limit the scope of Respondents’ privilege log “perhaps by sampling or by categorizing the documents in some way.”); SEC v. Nacchio, Civil Action No. 05-cv-00480-MSK-CBS, 2007 WL 219966, at *9-11 (D. Colo. Jan. 25, 2007) (allowing a categorical privilege log for SEC documents including handwritten and typed notes, internal memoranda, and internal correspondence on topics concerning the litigation after a given date, determining that such documents were work product).
The casket……”You’re not the only one…”
2006 United States v. Int’l Longshoremen’s Ass’n, AFL-CIO, No. CV05-3212(ILG)(VVP), 2006 WL 2014093, at *2 (E.D.N.Y. July 18, 2006) (holding that the Plaintiff, the DOJ, need not separately itemize certain categories of documents on a privilege log, drafts of documents, internal correspondence about the litigation, and attorney notes); United States v. Magnesium Corp. of Am., No. 2:01-CV-00040 DB, 2006 WL 1699608, at *6 (D. Utah June 14, 2006) (holding that plaintiffs had “commendably” agreed to allow defendants to group privilege log entries by category and noting that a “compilation of a detailed privilege log identifying each document…undoubtedly would be an expensive undertaking since it is undisputed that these documents number in the thousands.”).
And end on rain…
Pre-2000 United States v. Gericare Med. Supply Inc., No. CIV.A.99-0366-CB-L, 2000 WL 33156442, at *3-4 (S.D. Ala. Dec. 11, 2000) (allowing categorical privilege log, noting that a “document-by-document privilege log would have revealed the identity of each person interviewed, information that itself would reveal the plaintiff’s strategy and mental processes.”); In re Imperial Corp. of Am., 174 F.R.D. 475, 476-79 (S.D. Cal. 1997) (in approving a categorical privilege log, the court stressed that there were “hundreds of thousands, if not millions, of documents…” and “[t]o force the creation of a document-by-document privilege log of documents of that magnitude is unreasonable and overly burdensome.”).
We’re off now. We need to attend to our Rockin’ Priv Party. We need to meet and confer with our guests, follow the rules of proportionality in serving our Gigabyte Soup, get the fried zucchini bytes out of the oven, and mediate some counselors who are not cooperating over a game of Twister in the corner. We’re planning on stringing some emails to decorate a tree of attachments and I have a mean ol’ batch of forensic punch to whip up, the recipe for which is work product, so, sorry I can’t share. If you can’t be at our Rockin’ Priv Party because you’re painstakingly laboring over some document-by-document privilege log, we feel for you. I believe Jakob Dylan has some words to meet your mood and your situation, as he does for most moods and situations. So, as a consolation, we’ll ask our band to play his They’ve Trapped us Boys for you. Here you go…
Ain’t going nowhere now
Let this bottle make its rounds
And let this liquor settle down
We ain’t going nowhere now
Fill the dirt back on the grave
Ain’t nothing good here being raised
Look at the filthy mess we’ve made
Fill the dirt back on the grave
We cut the fruit, we took the tree
We chiseled all the branches free
We took more than we’d ever need
We cut the fruit, we took the tree
Darker than ever in the mine
Shine a light, shine a light
Holler back now, make some noise
I do believe they’ve trapped us boys
– Jakob Dylan, They’ve Trapped Us Boys, on Women and Country.
Trapped, I’m sure, shake all of those trees of all their leaves and fruit. Don’t let one document go unlogged, or email string left intact. Categories be damned.
Columnists’ opinions are their own and are not reflective or indicative of any opinions held by Ropes & Gray or its lawyers nor are they reflective or indicative of opinions held by Suffolk Law School. This article should not in any way be considered advice of counsel or the rendering of a legal opinion for any person, party, company, client, or entity.