Attorney-Client Privilege — Waiver — Supplying Privilege Log within One Month of Production Timely Enough to Avoid Finding of Waiver

From White v. Graceland College Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 U.S. Dist. LEXIS 63088 (D. Kan. Aug. 7, 2008):

The party who withholds discovery materials must provide sufficient information, usually in the form of a privilege log, to enable the other party to evaluate the applicability of the privilege or protection. Failure to follow the Federal Rules of Civil Procedure may result in waiver of the attorney-client privilege and/or work-product protection. Although this result is not mandated by the federal rules, the Advisory Committee contemplated the sanction: "[t]o withhold materials without [providing notice as described in Rule 26(b)(5)] is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection." Acknowledging the harshness of a waiver sanction, however, courts have reserved such a penalty for only those cases where the offending party committed unjustified delay in responding to discovery. Minor procedural violations, good faith attempts at compliance and other such mitigating circumstances bear against finding waiver.

This Court has found waiver too harsh a sanction for untimely submission of the privilege log in most cases where the delay is not excessive or unreasonable. In Heavin v. Owens-Corning Fiberglass, the defendant served its privilege log approximately 23 days after serving its discovery responses asserting protection based on work product and attorney-client privilege. When the plaintiff requested a more detailed privilege log, the defendant responded within ten days. The Court found waiver of any privilege was too harsh of a sanction.

***[I]n Sawyer v. Southwest Airlines... [t]he Court found no waiver even though the party asserting privilege waited more than two months after it served its initial responses to the requests for production to provide a meaningful privilege log. In a more recent case, Sprint Communications Co., L.P. v. Vonage Holdings Corp., the Court *** Court declined to find waiver as there was no evidence presented regarding whether the privilege logs were served in conjunction with the corresponding privilege objections or, if served after the corresponding privilege objection, how long after the objection and withholding of documents it took to serve the corresponding privilege log.

In the few cases where the court found waiver based upon the untimely submission of a privilege log, the privilege log had been prepared after the court was asked to rule on the issue and after entry of an order directing production of the documents. These cases are distinguishable from the facts presented here. Defendants' original privilege log was provided before the instant Motion to Compel was filed and thus before the Court was asked to rule on the issue. Defendants' supplemental privilege log was provided before the instant motion was fully briefed.

The Court finds that the relatively short delay by Defendants in providing their privilege log does not justify a finding of waiver. Defendants produced their answers and responses to Plaintiff's interrogatories and requests for production on January 22, 2008. Their privilege log was produced less than a month later on February 19, 2008. Defendants later provided a supplemented privilege log, along with their supplemental answers and responses to Plaintiff's First Interrogatories and Requests for Production of Documents, on March 27, 2008. Although Defendants failed to serve their supplemental privilege log at the time they served their original answers and responses to Plaintiff's First Interrogatories and Requests for Production of Documents, the Court finds no unjustified delay on the part of Defendants. The Court recognizes the amount of effort and time it takes to prepare a privilege log. Defendants' first privilege log is 8 pages long and contains entries for 121 documents. Defendants' supplemented privilege log is 27 pages long and contains entries for 371 documents. Given the number of documents listed on Defendants' privilege log, the Court does not find the relatively short delay in providing it to be unjustified. Accordingly, the Court finds that Defendants have not waived any protection for the documents listed in its privilege log based the untimely submission of their privilege log.

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