Although Fed. R. Civ. P. 26 does not require privilege logs, most courts expect them – and many courts specifically require them. However, courts take widely varying approaches to log requirements.
In Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886 (N.D. Cal. Feb. 21, 2014), plaintiff challenged defendant Hershey's privilege log. The court rejected Khasin's argument that Hershey's log improperly "failed to provide the organizational positions of senders and recipients." Id. at *12. The court noted that plaintiff's arguments "are based on an incorrect recitation of the requirements for a privilege log" – because plaintiff relied on the Second Circuit's "test for a sufficient privilege log [that] requires a greater degree of specificity than the one required by the Ninth Circuit." Id. at *12-13. The court pointedly noted that "the Ninth Circuit's test does not require a privilege log to provide the organizational positions of senders and recipients." Id. at *14.
As in so many other areas, litigants must check the pertinent court's specific approach to both the substance and the logistics of privilege claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
