Waiver of Objection When Privilege Log Was Not Timely Served

How many times have you seen this discovery response: “Objection; this request for production of documents is vague, ambigious, oppressive, unduly burdensome, seeks information not reasonably calculated to lead to the discovery of admissible evidence, and seeks the discovery of material protected by the attorney client privilege, the work product doctrine, and the Magna Carter. Notwithstanding this objection and without waiving the same, a paralegal intern with 20/400 vision and no knowledge of the facts of this case or the law has gone to a warehouse (with a non-fat latte in hand), stared in the general direction of scores of unmarked boxes containing unknown documents and has determined that there probably isn’t anything in any of those boxes that you want. We promise. If you file a motion to compel and ever get an order to look at these documents, you can go to our warehouse in Burning Stump, Georgia between the hours of 12:00 Noon and 3:00 p.m. on any Friday, Saturday or Sunday in July for a inspection. As a professional courtesy you are advised that there is no air conditioning in this warehouse and the closest photocopier is 23 miles away.”

Well, maybe you haven’t got that objection. But you have seen lots of objections to discovery, including those that did not attach a privilege log. One federal appellate court has ruled that, under the facts of that case, the failure to produce a privilege log was a waiver of the objection.

The case is Burlington Northern & Santa Fe Railway Co. v. United States District Court for the District of Montana, 2005 WL 730193 (9th Cir. 2005). Read the decision here.

The Court ruled that boilerplate objections filed within the 30 day period imposed by Rule 34 were insufficient to assert a privilege. However, the Court went on to say that the failure to serve a privilege log within 30 days was not a per se waiver and told judges to make determinations on a case-by-case basis taking into account the four factors listed below:

A) The relative specificity of the objection or assertion of privilege (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient);

B) The timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient);

C) The magnitude of the document production; and

D) Other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard.

The Court cautioned that the factors should be applied “in the context of a holistic reasonable anaylsis.”

The Court ruled that the District Court did not err in finding that the privilege had been waived. Important to the appellate court was the fact that the plaintiff waited five months to produce a privilege log, the plaintiff was a sophisticated litigant, some of the documents sought had been produced in prior litigation, and that the privilege log (when finally submitted) was inadequate.

This is another arrow in the quiver to combat discovery abuse.

Thanks to Preston Gates for bringing this opinion to my attention.

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