Emails ~ Privilege Log - Should the Privilege Log List Every Single Email?


Say you are working on a case where you have had thousands of email exchanges with your client.  Opposing counsel asks (demands, or threatens?) that you produce a privilege log listing each and every single email.  Does that sound reasonable? 

Not so much.

Unsurprisingly, courts agree:  Fifty-Six Hope Rd. Music, Ltd. v. Mayah Collections, Inc., 2007 U.S. Dist. LEXIS 43012 (D. Nev. June 11, 2007):

Email communications . . . are not excepted from the requirements of Rule 26(b)(5)(A). Although, as Plaintiffs state, email communication may have taken the place of telephone conversation, it has also replaced paper correspondence. Allowing a party to avoid its obligations under Rule 26(b)(5)(A), by simply stating that privileged email communications are too numerous to describe, would create the potential for avoiding the production of relevant information that is not entitled to protection under the attorney-client privilege or work-product doctrine. That said, confidential email communications between Plaintiffs and their attorneys are generally protected by the attorney-client privilege. Additionally, email communications exchanged between Plaintiffs' counsel during this lawsuit or in anticipation of this lawsuit are generally entitled to protection from disclosure under the attorney work-product doctrine. If, as Plaintiffs claim, emails regarding such communications are in the hundreds or thousands, requiring Plaintiffs to provide a privilege log for each privileged email communication would be unduly burdensome and not serve the legitimate purposes of discovery under the Fed.R.Civ.Pro. 26.

 Accordingly, the Court will not require Plaintiffs to produce a privilege log for each allegedly privileged email communication, subject to Plaintiffs' counsel submitting an affidavit or declaration under oath which states and describes the following: (1) That Plaintiffs have made a diligent and good faith effort to locate and produce all relevant and non-privileged documents, including emails, responsive to Defendant's requests. (2) The number, or a reasonable estimate of the number, of the privileged email communications that exist. (3) That Plaintiffs have reviewed the alleged attorney-client or work-product privileged emails to ensure that relevant, non-privileged email communications are not being withheld from production and that Plaintiffs' counsel verifies that no arguably non-privileged email communications are being withheld. (4) In the case of emails as to which the attorney-client privilege is claimed, the affidavit or declaration should include a verification that the emails were not provided to persons other than the client and attorney. If such communications were provided to non-clients, and the attorney-client privileged is still claimed, then a privilege log consistent with Diamond State for each such communication should be provided. (5) In the case of attorney-work product, the privilege may extend to persons other than the attorneys or the client, such as investigators. To the extent any attorney work-product emails have been provided to persons other than the attorneys or the client, an appropriate privilege log consistent with Diamond State should be produced for each such communication and an explanation provided as to why the work-product privilege applies.

Amen.
 

 
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