Commercial Litigation and Arbitration

Email Strings — Privilege Logs — Waiver by Failure to Log

In contrast to Nnebe v. Daus, 2007 U.S. Dist. LEXIS 32981 (S.D.N.Y. May 3, 2007) (discussed in the posting dated May 25, 2007), the opinion in C.T. v. Liberal School District, 2007 U.S. Dist. LEXIS 38177 (D. Kan. May 24, 2007), declined to find a waiver despite an inadequate privilege log. Magistrate Judge K. Gary Sebelius concluded that: ‛While the court could find that plaintiff ... has waived his claims of privilege due to the insufficiency of his privilege log, ‘in the absence of bad faith on the part of the non-moving party in preparing the ... privilege log, ... the Court will decline to find waiver’ and instead require the non-moving party to supplement his privilege log“ (internal brackets omitted). In constructing the supplemental log, however, the Court interposed another waiver rule: ‛[T]he amended privilege log shall identify whether or not each email listed is a ‘string’ or ‘strand’ email. If any of the emails listed in the amended privilege log constitute a ‘string’ or ‘strand’ email, the amended privilege log ‘will also list each e-mail within a strand as a separate entry. Otherwise, the client may suffer a waiver of the attorney-client privilege or work product protection (and the lawyer may later draw a claim from the client)’“ (citation omitted).

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