• February 17, 2020

When you’re facing challenges to entries on your privilege log (if you don’t know what a privilege log is, scroll down to the bottom of this post), here are words or concepts you do not want to read in a Magistrate Judge’s ruling after in camera review of withheld documents listed on your privilege log:

  • “inadequate,”
  • “multiple egregious deficiencies,”
  • “most egregious misconduct,”
  • “inexcusable;”
  • “a cavalier approach to the preparation of [the] privilege log;
  • “this Court [previously] flagged serious concerns;” and, our favorite judicial understatement,
  • a comment that counsel’s conduct is “concerning.”

If you read those words in a Magistrate Judge’s order, you will not be surprised to read at the end of the order that your adversary “should file an affidavit supporting their request for attorney fees costs [sic] along with any supporting documents.”

Copyright infringement plaintiff, MPAY, owns payroll processing software. MPAY sued a number of entities for allegedly infringing on MPAY’s copyright (and related claims) in U.S. District Court (D. Minn.) about 11 months ago.

Something appears to have gone terribly wrong in the compilation of defendants’ privilege log in the MPAY case. The problems might have started because lead counsel for the defendants “wore many different hats with each Defendant” (here at p.2). But the problems were way deeper than that.

Defendants’ privilege log listed emails (which is, of course, common). But defense counsel told U.S. Mag. Judge Becky R. Thorson (D. Minn.) that “no [e-mail] attachments were withheld from production…” Guess what? Many e-mail attachments, Judge Thorson eventually discovered, had been withheld from production.

But it gets worse.

After Defendants’ privilege log was challenged repeatedly, after the challenges were each sustained by the court repeatedly, Defendants unilaterally withdrew privilege claims as to more than 40 documents on their log.

And it gets worse.

The Magistrate Judge, in her in camera review found nearly 100 additional entries non-privileged.

And it gets worse.

A document on the privilege log described as: “Email – Legal Services re: legal documents for potential new business venture,” “reveals a page with the subject line ‘United’ and a photograph of adults on an airplane wearing protective headgear.”

Another withheld document, submitted to the judge for in camera review, and described as “Email – Litigation Matter re: Payroll World discovery responses” was, in fact, a happy birthday message. (See here at p. 14.)

Our practice pointer: at least at some point and well before submission to a court of your privilege log’s documents for in camera review, it would probably benefit your clients if an actual thinking human reviewed your clients’ privilege log to make sure that the entries are sensible, if not iron-clad defensible. Rest assured, a human will be reviewing the documents when they are submitted for in camera review (and won’t be enjoying that task, by the way).

(One hopes for the clients’ sake that an actual human is reviewing the MPAY defendants’ lawyers’ bills for the repeated trips to court for no discernible benefit, not to speak of the imposition of the other side’s attorneys’ fees and costs.)

[For non-lawyer or non-legally trained readers, a “privilege log” is a list of documents, identifying (but not revealing the contents of) documents that a party to litigation (whom we can call “Party A”) has been asked to deliver to an adversary (or other party in the litigation whom we’ll call “Party B”). Party A may wish to withhold documents from Party B under a claim of privilege — that is, a claim that the document, though relevant to the litigation is “privileged” from production to the other side. However, Party A is obligated to provide a list, or log, of withheld documents to provide Party B with enough information to evaluate the privilege claim. A classic defensible privilege log entry might say, “From: Party A’s Lawyer; To: Party A; Regarding: Litigation Strategy and Damages Analysis.”]