Commercial Litigation and Arbitration

Listing Email on Privilege Log Does Not Preserve Privilege as to Attachments

The plaintiff in C.T. v. Liberal School Dist., 2008 U.S. Dist. LEXIS 5863 (D. Kan. Jan. 25, 2008), listed a series of emails on his privilege log, but did not separately list the attachments. Held, “any claim of privilege plaintiff might wish to raise as to those documents has been waived, and the attached documents, to the extent they are responsive to defendants' document requests, shall be produced. Plaintiff has had ample opportunity to list these attachments on ... the privilege logs....” Note that not all courts would so hold, at least not in all circumstances. The fact that the attachments are appended to privileged communications may, in itself, render that iteration of the documents privileged (see our post of January 23, 2008). Nonetheless, prudence suggests that the attachments should be included on the privilege log if there is a desire to protect them (including the fact that they were submitted as part of a privileged communication).

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