Commercial Litigation and Arbitration

Attorney-Client Privilege & Work Product Protection — Waiver by Failure to Log

Defendants withheld emails from production, did not log them pursuant to Fed.R.Civ.P. 26(b)(5), yet later invoked attorney-client privilege and the work product doctrine as defenses to production. In Nnebe v. Daus, 2007 U.S. Dist. LEXIS 32981 (S.D.N.Y. May 3, 2007), District Judge Kenneth M. Karas upheld Magistrate Judge Andrew Peck's decision to order production of the emails on the ground that the defendants had waived their privilege claims by failing to include the emails on their initial privilege logs. ‛Withholding privileged materials without including the material on a privilege log pursuant to Rule 26(b)(5) ‘may be viewed as a waiver of the privilege or protection.’ Fed. R. Civ. P. 26 advisory committee's note; see also NextG Networks of N.Y., Inc. v. City of New York, No. 03 Civ. 9672, 2005 U.S. Dist. LEXIS 6381, 2005 WL 857433, at *2 (S.D.N.Y. Apr. 13, 2005) (‘If a claim of privilege is not asserted at the time that a party responds to a discovery request, the privilege is waived.’); In re Honeywell Int'l, Inc. Sec. Litig., 230 F.R.D. 293, 299 (S.D.N.Y. 2003) (finding waiver of work product privilege where party failed to specify correct privilege on privilege log)…. Here, it is not contested that Defendants had the emails at the time of their initial privilege logs. Accordingly, it was not clearly erroneous to … order their production on the grounds that any privileges were waived.“

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