Grimm's Guide to Asserting Attorney-Client Privilege

Posted on June 12, 2008 by Brian Wm. Higgins

     In Victor Stanley, Inc. v. Creative Pipe, Inc., No. 06-2662 (D. Md. May 29, 2008), U.S. Chief Magistrate Judge Grimm describes the proper means for asserting that documents are protected or immune from discovery because of the attorney-client privilege or attorney work product doctrine. Judge Grimm's explanation comes at the end of his opinion in Victor Stanley, published two weeks ago.

The Issue

     Because a party responding to a Rule 34 request for the production of discovery is entitled to refuse to produce documents if they are privileged or work product protected, Judge Grimm pointed out that the Federal Rules of Civil Procedure require that when doing so, the responding party must “describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” The most common way to do this, he wrote, is by using a privilege log, which identifies

  1. Each document withheld,
  2. Information regarding the nature of the privilege/protection claimed,
  3. The name of the person making/receiving the communication,
  4. The date and place of the communication, and
  5. The document’s general subject matter.

What Really Happens?

     In actuality, Judge Grimm, who in his position as Magistrate referees all kinds of discovery disputes, found that lawyers infrequently provide all the basic information called for in a privilege log, and if they do, it is usually so cryptic that the log falls far short of its intended goal of providing sufficient information to the reviewing court to enable a determination to be made regarding the appropriateness of the privilege/protection asserted without resorting to extrinsic evidence or in camera review of the documents themselves. Few judges, he said, find that the privilege log is ever sufficient to make the discrete fact-findings needed to determine whether a privilege/protection was properly asserted and not waived.

What Should Lawyers Be Doing? 

     According to Judge Grimm, parties should be wary of filing a response to a Rule 34 document production request that asserts privilege/protection as a basis for refusing to make requested production without having a factual basis to support each element of each privilege/protection claimed for each document withheld, because doing so is a sanctionable violation.

     Insuring that a privilege or protection claim is properly asserted in the first instance and maintained thereafter involves a several step process, Judge Grimm wrote.

(1)  First, pursuant to FRCP 26(b) (5), the party asserting privilege/protection must do so with particularity for each document, or category of documents, for which privilege/protection is claimed.

(2)  After that, if the requesting party challenges the sufficiency of the assertion of privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis–by affidavit, deposition transcript, or other evidence– for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden.

(3)  If the asserting party makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can either rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.

Result

     In Victor Stanley, Judge Grimm said that had he not ruled that Defendant's 165 inadvertently produced documents waived the privilege/protection status of the documents, then the effect of a failure by the Defendants to comply with the court’s order regarding the proper manner in which to assert privilege/protection would have warranted an order to produce the materials for failure to carry the burden of demonstrating the existence of the privilege/protection claimed. 

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Maryland District Court Magistrate Judge Grimm Offers Insight Into E-Discovery

Posted on July 16, 2007 by Brian Wm. Higgins

          Many authorities and experienced litigators recognize that the discovery of electronic documents and information has become the centerpiece of every civil litigation. The reason for all the attention? In December 2006, the Federal Rules of Civil Procedure were amended to specifically require e-discovery in the conduct of civil litigation. Unfortunately, as Maryland District Court Magistrate Judge Paul W. Grimm pointed out during a recent LEXIS webinar, the new e-discovery rules are not self executing. To address that short-coming, the Federal District Court for the District of Maryland recently published what amounts to a user’s guide to e-discovery. Entitled Suggested Protocol for Discovery of Electronically Stored Information, the guide provides a comprehensive list of topics and issues that lawyers should consider before and during the initial meet-and-confer conference required under the e-discovery rules, as well as during the collection and production of electronically stored information (ESI) to opposing parties.

          The stated purpose of Maryland's Protocol is "to facilitate the just, speedy, and inexpensive conduct of discovery involving ESI in civil cases, and to promote, whenever possible, the resolution of disputes regarding the discovery of ESI without Court intervention.” Magistrate Judge Grimm is the lead proponent of the Protocol, which is characterized as a working model that has not yet been adopted by the Maryland District Court.

          Notably, the Protocol states that "If a party is not reasonably prepared for the Fed.R.Civ.P. 26(f) Conference of Parties in accordance with the terms of this Protocol, that factor may be used to support a motion for sanctions by the opposing party for the costs incurred in connection with that Conference." Judge Grimm commented that counsel seeking the District Court's intervention in e-discovery disputes will be in a better position to argue the merits of their motion to compel if they can establish that they tried to follow the Protocol but were rebuffed by opposing counsel.

Comments:

  • Maryland’s Protocol should be embraced by attorneys planning for and conducting e-discovery during litigation in Maryland, because little guidance is currently available in the form of court orders and opinions concerning how to complying with the 2006 e-discovery rules (several district courts have adopted local rules addressing e-discovery, but I am not aware of any other court that provides nearly the same level of guidance as Maryland's Protocol).

  • Like other District Courts (e. g., New Jersey and Delaware), the Protocol suggests that counsel engage the help of an information technology/information management (IT/IM) liaison to help with e-discovery. That should be welcome news to the expanding e-discovery forensic evidence industry that popped up as a result of the 2006 e-discovery rules. Many of the private companies that provide e-discovery services offer plenty of informational resources for lawyers involved in e-discovery.

  • One of the interesting features of the Protocol is the division of non-apparent or meta-data associated with almost all electronic data into three categories: System Meta-Data, Substantive Meta-Data, and Embedded Meta-Data. The distinction will be meaningless, of course, if the parties agree not to exchange meta-data.

  • For a general overview of e-discovery from a practical perspective, see the author's article: E-Discovery: An Environmental Professional's Guide. ELR (August 2007).
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