Privilege logs in the Delaware Court of Chancery
September 2019 | EXPERT BRIEFING | LITIGATION & DISPUTE RESOLUTION
As the Sedona Principles recognise, “preparing and reviewing a privilege log can be extremely time-consuming. The immense volume of electronically stored information (ESI) now subject to discovery exacerbates the problem”. The volume of ESI in modern litigation can result in privilege logs with thousands or tens of thousands of documents, requiring hundreds or thousands of attorney hours to prepare.
When proceedings are expedited, the burden of preparing a privilege log is often magnified. Because the party asserting privilege bears the burden, if the party does not adequately assert privilege in its privilege log, courts can find that the party has waived protection over otherwise privileged documents.
In recent years, no court in the US has scrutinised the adequacy of privilege logs like the Delaware Court of Chancery – which has frequently resulted in a finding of waiver over entire cadres of privileged documents as a consequence of a party preparing an inadequate log. This article describes recent decisions that have increased the consequences for preparing inadequate privilege logs in the Delaware Court of Chancery, and provides suggestions for practitioners to consider in connection with preparing privilege logs that will pass judicial scrutiny.
The Delaware Court of Chancery is the nation’s premiere court for complex commercial disputes, both because of the overwhelming number of entities that are incorporated there, and because commercial contracts often contain a Delaware forum selection clause. Befitting its unique status, the court has developed a particular approach to privilege logs that can catch out unwary practitioners.
Over the years, Delaware’s vice chancellors have applied increasing scrutiny to privilege logs and have not hesitated to sanction parties that have prepared inadequate privilege logs, by finding that privilege has been waived over each and every document contained on the log. Indeed, this sanction was recently imposed by vice chancellor J. Travis Laster in an expedited action where discovery took just a few weeks, showing that the Court of Chancery expects litigants to produce compliant privilege logs, even if they are working to short deadlines.
The Delaware Court Of Chancery’s unique approach to privilege logs
Delaware’s evolving stance towards sanctions for insufficient privilege logs arguably began with vice chancellor Laster’s decision in Klig v. Deloitte LLP. This case was brought by a Deloitte tax associate who was placed on leave after being arrested by federal authorities. During discovery, Deloitte – which was represented by experienced Delaware counsel – withheld and logged 342 documents. That log, however, used just “five identical phrases” to describe the withheld documents. Deloitte’s log also failed to identify attorneys in any way or identify “anyone’s title or professional affiliation”.
Then, when Klig asked Deloitte to supplement its log, Deloitte refused. This combination of facts led vice chancellor Laster to hold that Deloitte had waived privilege over all “inadequately described documents” – i.e., the entire log. In reaching this conclusion, vice chancellor Laster lamented the general approach to privilege logs by attorneys, who tended to spar over the logs and overassert privilege.
Vice chancellor Laster hoped that by awarding more severe relief, he could change this practice: “The remedies imposed by the court play a significant role in the producing party’s calculus. If the only consequence of losing a motion to compel is an order requiring the party to prepare the log it should have prepared in the first place, then a Deloitte-style log offers considerable upside without meaningful downside. If parties know that a motion to compel can result in the immediate production of inadequately described documents, then the upfront incentives change.”
Vice chancellor Laster’s efforts to remake the practice of privilege logs continued in Mechel Bluestone, Inc. v. James C. Justice Companies. Mechel concerned a challenge to a post-acquisition increase to the price of coal properties that had been purchased by the plaintiffs. The parties agreed to a discovery schedule that was – by Delaware standards – relatively long. Plaintiffs then produced an initial privilege log that contained 6125 entries, compared to a production of 11,201 documents. However, 590 of these entries “lacked information identifying the parties to the communication or the attorney involved”.
And one of these entries inadvertently included a note from the preparer that “the author is unknown [but] [t]o be safe, I assumed this was from an attorney”. Plaintiffs also produced a ‘players list’ of names found on the log, but this list contained just 39 names, even though the log itself “contained approximately 830 unique names and e-mail addresses”. Plaintiffs’ counsel admitted that this initial effort was deficient, and over the next six weeks, produced four amended versions of the privilege log.
Vice chancellor Laster reviewed these deficiencies and lamented that “[t]he involvement of senior practitioners appears to have been entirely lacking in this case… [and] [t]here is no indication that Delaware counsel had any involvement in the preparation of the log”. And because the plaintiffs “initially produced a facially inadequate log and subsequently provided deficient amended logs, it was reasonable for [the defendant] to believe that the problems were endemic. That is the inference the court draws”.
However, because the plaintiffs’ counsel accepted their initial error and tried to correct the issues, vice chancellor Laster declined to order a blanket waiver, but order the plaintiffs to produce the 590 documents initially withheld without adequate information, as well as documents that were produced with excessive redactions. Vice chancellor Laster also ordered that any entries in the final amended log that contained a name not in the players list would be produced. Finally, vice chancellor Laster appointed a special discovery master to resolve any remaining issues with privileged documents, to be paid for by the plaintiffs.
Vice chancellor Laster once again ordered production of documents after finding partial waiver based on an inadequate privilege log in In re Oxbow Carbon LLC. He concluded that the withholding party had waived work product protection because it did not “identify the specific litigation that forms the basis of the work product claim”. He also ordered production of logged documents for which no attorney was identified.
Vice chancellor Laster further refused to let the withholding party produce a corrected log because the parties had “taken numerous discovery-obstructing stances, such that they are not in a position to receive the benefit of the doubt… [and] were on notice about the absence of attorneys on their log and could have corrected this defect. They are not entitled to a ‘do-over’ now, after briefing and after the court has ruled”.
Earlier this year, vice chancellor Laster again imposed a broad waiver of privilege as a sanction for inadequate logs – this time in an expedited proceeding. In Mountain West Series of Lockton Companies, LLC v. Alliant Insurance Services, Inc., the plaintiff sought immediate injunctive relief after 20 employees decamped to a competitor company. During the few weeks available for discovery, the defendant “prepared a grossly defective privilege log… [which] suggested that [the defendant] had not made a good-faith effort when preparing its log but instead was attempting to invoke privilege expansively to hide problematic documents”.
For example, the defendant used two virtually identical and generic descriptions for 98 percent of the documents on its log, and combined the recipient, copy recipient and blind copy recipient fields into a single column, so that the plaintiff had no way to know whether a lawyer was a primary or secondary recipient of a document. The expedited schedule “did not permit do-overs”, but despite the time constraints the parties operated under, vice chancellor Laster ordered all documents produced, including legal memoranda that “would have been privileged had the defendant logged them properly”.
While vice chancellor Laster is the most visible proponent of giving aggressive scrutiny to privilege logs, he is by no means the only member of the Delaware Court of Chancery to take this approach. In 2009, then-vice chancellor Strine ordered Delaware counsel to play a significant role in privilege logging, noting that “if the law firm designating privilege is ‘outside Delaware, they will have overdesignated… [but when] there’s somebody responsible from each Delaware firm it’s amazing how privilege logs shrink”. And in 2018, in Trascent Management Consulting, LLC v. Bouri, vice chancellor Montgomery-Reeves cited a party’s repeated inability to produce a sufficient log over “five months and at least three tries” and held that privilege had been waived.
The approach to privilege logs that has been advocated by the Delaware Court of Chancery stands in contrast to the growing trend of courts and commentators who have, in recent years, urged parties to pursue less burdensome means of claiming privilege, including by using categorical privilege logs and logs created using technology assisted review. The Court of Chancery has given guidance encouraging counsel to agree to alternative approaches to privilege logs, including categorical logs, logging emails as a single chain rather than individually, and not producing a log of redacted documents.
For example, in TCV VI, L.P. v. TradingScreen Inc., vice chancellor Noble allowed the parties to not produce a privilege log of redacted documents provided that “senior Delaware counsel… review each redaction and certify that no redaction runs afoul of the” court’s decision on the applicability of privilege. But it is difficult to see how a categorical privilege log could provide the level of detail expected by many vice chancellors, and preparing a privilege log using technology assisted review may well draw sanctions from a vice chancellor who expects senior Delaware counsel to play an active role in the preparation of a privilege log.
Best practices for counsel preparing a Delaware privilege log
Although the Delaware Court of Chancery scrutinises privilege logs and sanctions inadequate logs with unusual frequency, the well-developed body of case law also gives practitioners some clear directions on how they can avoid waiving privilege or drawing judicial ire.
Think about privilege logs early. Counsel practicing in Delaware cannot wait until document discovery is nearing completion to begin working on their privilege logs. Starting with document collection and initial review, counsel must approach discovery knowing that a detailed privilege log and players list will need to be produced according to the deadlines set by the court. And counsel should meet and confer with opposing counsel at the earliest opportunity to explore alternative strategies to reduce the burden of preparing a privilege log.
Involve Delaware counsel early and often. Delaware is blessed with a bar that is highly experienced in large, complex and fast-moving cases. Not only will Delaware counsel be able to guide lawyers from out-of-state through the privilege log process, but the Delaware courts expect Delaware counsel to be closely involved in privilege calls and preparing the log. Do not wait until the privilege log is being prepared to involve Delaware counsel – they should be working on setting initial parameters for privilege calls and reviewing tricky documents as early in the process as possible.
Do not play games. The Delaware Court of Chancery does not look kindly at counsel and parties who use the privilege log to hide troublesome documents. Counsel should therefore err on the side of not asserting privilege over documents that do not clearly show a request or provision of legal advice. On the log itself, document descriptions should be meaningful, giving a clear description of why the document is privileged. All people appearing on the log need to be clearly identified in a players list, including their relationship to the lawyers and clients. Counsel should closely scrutinise any documents shared with third parties to determine if a valid claim for privilege exists.
If you make a mistake, correct it. Even vice chancellors realise that parties and their counsel sometimes make mistakes or produce deficient privilege logs. Although a single deficient log may lead to a finding of partial waiver, the Delaware Court of Chancery has given the benefit of the doubt to parties who quickly and openly admit to deficiencies and work quickly to resolve them. By contrast, counsel who refuse to supplement inadequate logs, or who do so late or produce deficient supplemental logs, are likely to find themselves producing even obviously privileged documents.
Vice chancellor Laster hoped that by imposing meaningful sanctions against counsel and parties who produce inadequate privilege logs, he could affect the general practice of attorneys practicing in the Delaware Court of Chancery. Although this approach has not been followed by many courts or commentators outside of Delaware, it is undeniable that it has had its intended effect in the Court of Chancery. But with diligent preparation and execution, every lawyer should be able to produce a privilege log that protects their client and satisfies this demanding court.
Julia Beskin is a partner and Guyon Knight is an associate at Quinn Emanuel Urquhart & Sullivan LLP. Ms Beskin can be contacted on +1 (212) 849 7482 or by email: email@example.com. Mr Knight can be contacted on +1 (212) 849 7128 or by email: firstname.lastname@example.org.
© Financier Worldwide
Julia Beskin and Guyon Knight
Quinn Emanuel Urquhart & Sullivan LLP