In basketball, the saying goes that a team can’t just roll the ball out onto the court and expect to win. The same concept applies to a party seeking to challenge an opponent’s refusal to produce documents on the basis of the attorney-client privilege. In a recent federal decision, the plaintiffs’ challenge to the defendant’s privilege log designations was the equivalent of just rolling the ball out onto the court, and the result tracked the basketball cliché. See Bartholomew v. Lowe’s Home Centers, No. 2:19-cv-695-JLB-KCD (M.D. Fla. July 22, 2022).
In Bartholomew, an alleged age discrimination case, Lowe’s produced documents in response to requests from the plaintiffs and also served a privilege log. In response to “meet and confer” efforts and the court’s issuance of a protective order, Lowe’s twice refined its privilege log, opting to produce certain documents it initially withheld and also adding more detail to its log. The plaintiffs were not satisfied with Lowe’s third version of its log and moved to compel the production of all documents on the log, or, alternatively, for the court to conduct an in camera inspection of the logged documents.
The court denied the plaintiffs’ motion—resoundingly. In so doing, the cCourt addressed several privilege issues that warrant closer examination:
Burden Initially Satisfied With an Adequate Privilege Log
On questions of privilege, the burden of proof initially is on the proponent of the privilege. The “almost universal” way of satisfying that initial burden is through a privilege log. The log must describe the nature of the documents withheld with enough information to enable the requesting party to assess the privilege claim. To do so, the log should set forth “specific facts that establish each element of the claimed privilege.” In Bartholomew, the court found the Lowe’s log adequate because it described each document, including the date it was prepared, its author and recipients, and the privilege asserted.
There Must Be Something Specific to Call the Log Into Question
By providing an adequate log, Lowe’s shifted the burden to the plaintiffs to overcome the privilege. The plaintiffs failed to meet that burden. “Court intervention is not appropriate just because a party objects to the assertions of privilege.” The court also stated that a privilege opponent cannot “merely tender dozens of pages of logs to the court and say ‘here, you figure it out.’” You can’t just roll the ball onto the court and expect to win.
Revisions to Log Were a Sign of Good Faith, Not Bad Faith
The plaintiffs argued that the third version of the privilege log was suspect because Lowe’s first two logs had been revised and therefore presumably were incorrect or inadequate. The court rejected that argument, concluding that the discovery process worked as intended. In response to its meet-and-confer obligations, Lowe’s refined its log, and the court applauded Lowe’s for doing so, rejecting out of hand the plaintiffs’ invitation to punish Lowe’s for those efforts.
Privilege Frequently Applies in a Corporate Context Even for Communications Not Directly Involving Counsel
The plaintiffs challenged the privilege log because many entries involved “communications between non-attorneys.” The court rejected that argument, holding that the privilege “covers communications between nonlawyers.” In a corporate context, nonlawyer employees of a corporate client can communicate with each other to gather information to provide to counsel or in order to transmit advice received from corporate counsel. The privilege can readily apply to such communications.
At-Issue Doctrine Requires Explicit Reliance on Advice of Counsel
The plaintiffs argued that Lowe’s waived the privilege because it invoked a “reasonable-factor-other-than-age” defense. The plaintiffs’ argument appeared to be that disclosure of Lowe’s communications with its counsel could undermine that defense. That seems to be another way of saying that the privileged communications should be produced because they could be relevant. That does not work. If a lawyer is doing his or her job, most or all communications between lawyer and counsel will be relevant to the issue at hand. Relevance never defeats the privilege. In order for the at-issue waiver doctrine to apply, a party must affirmatively and expressly place its own communications with counsel at issue, e.g., advancing an advice-of-counsel defense.
Even an in Camera Review Is an Intrusion on the Privilege
In camera reviews of documents withheld as privileged are common. Nonetheless, in Bartholomew, the court held that such reviews should not be undertaken lightly. It described in camera reviews as “strong medicine” that amount to “invading” communications that a party has certified as privileged and confidential. The court was unwilling to impose such an intrusion on confidential communications based on the thin-gruel challenges the plaintiffs made to the Lowe’s log entries.
Lowe’s did its duty and met its burden. It provided a sufficiently detailed privilege log. By so doing, Lowe’s shifted the burden to the plaintiffs to convince the court that the log was suspect. The plaintiffs, however, just rolled the ball onto the court, likely hoping the court would assume the burden of reviewing in camera the withheld documents. The court refused even to take that minimally invasive step because the plaintiffs failed to provide any legitimate reason to do so.
Kevin P. Allen is the managing partner of the Pittsburgh office of Duane Morris. He is also the author of “The Attorney-Client Privilege and the Work-Product Doctrine in Pennsylvania,” the seventh edition of which will be published later this year.