• FindLaw
• Legal Technology Center
• Articles, White Papers, Press Releases

Court Reduces Burden When Logging Privileged Emails

By Eric Sinrod

(July 17, 2007) - In litigation, parties and their attorneys are not required to produce to the other side documents that contain privileged communications between attorney and client or confidential work product created by an attorney when representing a client. However, the decision not to produce such materials must be documented in what is called a privilege log.

For each document withheld, enough information must be set forth on the log so that the opposing side can understand or test whether it properly was withheld. Thus, typically a privilege log entry will set forth for each document - the author, the direct recipients, people who were copied, the date, the number of pages and a general reference to the subject matter - without actually divulging the privileged or work product substance of the document.

The rules relating to the foregoing were adopted prior to the electronic age. In this new age, the number and volume of communications has increased exponentially with the ease of electronic communications. The question has arisen in a very recent case whether a privilege log has to address separately each and every one of many emails withheld from production. The party resisting such detailed efforts argued against the sheer burden of the exercise, and as explained below, the court agreed that such exercise was not required.

In the case of Fifty-Six Hope Road Music Ltd. v. Mayah Collections, Inc. the plaintiffs alleged that they are the exclusive owners and licensees of all trademark and publicity rights in the name, image and likeness of the late reggae musician Bob Marley. They argued that the defendants continued to sell Bob Marley t-shirts beyond the rights they had obtained in a license agreement. The defendants denied this allegation.

As the case progressed, the defendants sought production of plaintiffs' emails. The plaintiffs disagreed with the defendants with respect to the defendants' position that the plaintiffs had to create privilege log entries for each of the hundreds and possibly thousands of email communications between the plaintiffs and their counsel. The plaintiffs asserted that if the court ultimately ordered them to engage in this exercise, then the defendants would have to reimburse them for their burdensome efforts.

The federal judge in Nevada agreed with the plaintiffs that the burden of the exercise would outweigh its value. Thus, rather than requiring a separate privilege log entry for each withheld email, the judge instead required the plaintiffs to provide a declaration to the defendants under oath declaring that : 1) the plaintiffs made a diligent and good faith effort to locate and produced all relevant documents and emails; 2) the number, or a reasonable estimate of the number, of the privileged email communications that exist; 3) the plaintiffs reviewed the alleged privileged and confidential work product emails to ensure that only truly privileged and confidential emails were being withheld; and 4) the withheld emails had not been shared with anyone outside of the privileged relationship.

Plainly, the judge greatly eased the burden of the plaintiffs in justifying their withholding of emails as privileged or confidential work product. If this approach is followed in other cases, life gets a lot easier for attorneys and their clients. However, it is worth noting that this streamlined process does deprive the party seeking the discovery of emails of some degree of oversight. If a judge follows the approach of this case and a party truly is interested in more detail, it always can volunteer to pay the freight of a detailed privilege log.

Electronic Discovery

© 2007 FindLaw