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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The power of the privilege log

Litigators often overlook the importance privilege logs can play in discovery. Privilege logs are addressed, if at all, during the Rule 26 discovery conference. Discussions typically result in an agreement that a privilege log will be produced for all documents withheld, but rarely do attorneys delve into what information a privilege log should contain. Addressing the content of a log early in the litigation can save you, and your clients, the time and expense of engaging in a privilege dispute. If not adequately addressed, privilege logs can become a major roadblock during discovery. This article outlines applicable law and best practices for evaluating and responding to privilege logs.

Minn. R. Civ. P. 26.02(b) defines the scope and limits of discovery. “[P]arties may obtain discovery regarding any matter, not privileged, that is relevant to a claim or defense of any party.”1 The two most frequently claimed (and therefore logged) privileges are the attorney-client privilege and the work product doctrine. The party withholding documents bears the burden of establishing the applicability of the privilege. 

Types of privilege

In Minnesota, attorney-client privilege requires a confidential communication between an attorney and client for the purpose of securing legal advice.2 The attorney-client privilege applies: 

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.3 

The work product doctrine is codified in Minn. R. Civ. P. 26.02(d) and protects documents and tangible things “prepared in anticipation of litigation or for trial by or for another party or by or for the other party’s representative” from discovery. Work product is defined as an attorney’s mental impressions, conclusions, opinions, and legal theories concerning the litigation.4 It has long been the rule in Minnesota that such materials are not discoverable.5 However, materials prepared for non-litigation purposes (i.e. prepared in the ordinary course of business) are discoverable.6 

A party claiming attorney-client privilege and/or work product for relevant, responsive documents is required to itemize the documents on a privilege log.7 Minn. R. Civ. P. 26.02(f) requires a party withholding information on the basis of privilege to “make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” It is common practice in Minnesota not to include communications with a party’s current counsel for the ongoing litigation and it’s understood that these communications are privileged. The heart of a privilege dispute revolves around communications that pre-date the current litigation.

Handling privilege logs

Upon receipt of a privilege log, the first thing you should do is determine whether it meets the requirements of Rule 26.02.  Are the documents adequately described so that you can assess the applicability of the privilege? A well-drafted privilege log should be organized document-by-document and include the following information: 1) the date of the document, 2) the identity of the author and each recipient of the document, including all persons copied, 3) the relationship between each recipient and author, 4) a description of the subject matter of the document with information sufficient to demonstrate the existence of the privilege, 5) the privilege claimed, and 6) the Bates numbers of the documents withheld.8 The log should further contain information sufficient to determine whether each element of the doctrine or privilege is satisfied, and has not been waived.9

Often, however, litigators supply only the following information, which is frequently insufficient to determine whether privilege applies: 1) the document’s date, 2) the parties to the communication, 3) a short description of the document (which is generally less than 10 words), and 4) the privilege claimed.10 It is in the producing party’s interest to provide the minimum amount of information about the document on the privilege log, downplay the importance of the document, disguise any weaknesses associated with the privilege claimed, and delay producing or never produce the document.11 

If you are unable to ascertain the applicability of the privilege or the log appears to be withholding documents that are relevant, and not privileged, you should challenge the privilege log and/or the privileges asserted. You should initiate the challenge through a deficiency letter and a demand for the privilege log to be amended and/or the production supplemented. Depending on the willingness of the party claiming the privilege to amend or supplement, this can lead to a series of amendments, supplementations, and meet-and-confers regarding the privilege log entries. Or privilege challenges can be met with outright refusals to amend or supplement. If a party is not willing to amend or supplement, you will need to decide whether to seek judicial intervention, either through a conference call with the judge, an in camera review of the documents, and/or a motion to compel. 

Resolving disputes

Litigating the propriety of privilege log entries can take many months, but the resolution of the dispute can change the course of the case because the logged documents are often the most important. But be aware that this comes at a cost and delay to both parties. Even if the disputed documents are ultimately ordered to be produced, your ability to effectively use the documents during discovery could be severely prejudiced if discovery has not been postponed, or the deadlines are not extended. 

In order to avoid costly privilege disputes, the privilege log should be discussed early in the litigation.  During the discovery conference, you should settle on the parameters of the privilege log and the information it must contain. You should also request that a privilege log be produced simultaneously with the document production. Confirm these parameters in your discovery plan. If a privilege log is not produced in conjunction with the documents, carefully review the discovery responses to verify whether any privileges are claimed. If privileges have been asserted, you should immediately request that the party produce a privilege log.  Ensuring that the privilege log is timely received and evaluated will mitigate any delay caused by a future privilege dispute.

Once a privilege log is produced, evaluate whether the privileges claimed are valid. Any challenges to the log should be made as soon as practical. If litigating the privilege log becomes necessary, you should seek a stay of discovery or extension of the deadlines during the pendency of the dispute, either by agreement of the parties or in conjunction with a motion to compel.

In sum, do not underestimate the role privilege logs can play throughout discovery. For litigators who consider the power of the privilege log early on in the litigation, the log will serve as a means to obtain discovery rather than a means to improperly withhold discovery.12

 

BLAIR HARRINGTON is an associate at Madigan, Dahl & Harlan, P.A., a national business law firm. Ms. Harrington’s litigation practice is focused on the areas of employment, construction, and general commercial law. 

 

Notes

1 Minn. R. Civ. P. 26.02(b) (emphasis added).

2 Brown v. St. Paul City Ry., 62 N.W.2d 688, 700 (Minn. 1954).

3 Kobluk v. Univ. of Minnesota, 574 N.W.2d 436, 440 (Minn. 1998) (citing 8 John Henry Wigmore, Evidence §2292, at 554 (McNaughton rev.1961)); see also Minn. Stat. §595.02, subd. 1(b).  

4 Dennie v. Metropolitan Medical Center, 387 N.W.2d 401, 406 (Minn. 1986).  

5 Id. 

6 See Minn. R. Civ. P. 26.02(d); Brown, 62 N.W.2d at 701-2.

7 “The requirement of a privilege log is necessary to permit consideration, by opposing counsel and ultimately by the courts, of the validity of privilege claims…It is the intention of the rule…to require the production of logs routinely to encourage the earlier resolution of privilege disputes and to discourage baseless assertions of privilege.” Advisory Committee Comment, 2000 Amendment, Minn. R. Civ. P. 26.01.

8 Robert J. Nelson, The Importance of Privilege Logs, Prac. Litigator, March 2000, at 27, 30.

9 Id.

10 Id., at 29.

11 Id. at 27.

12 Id. at 30.

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