3/10/05 415 *SEALED* Notice of filing entitled: IBM's Privilege Log
~ Group Email List filed by Intl Bus Mach Inc (blk)
~ [Entry date 03/11/05] [Edit date 03/11/05]

3/10/05 416 *SEALED* Notice of filing entitled: IBM's Privilege Log,
~ filed by Intl Bus Mach Inc (Oversized Document) (blk)
~ [Entry date 03/11/05] [Edit date 03/11/05]

3/10/05 417 Certificate of service [416-1] file notice, [415-1] file
~ notice by Intl Bus Mach Inc (blk) [Entry date 03/11/05]

3/10/05 418 SEALED DOCUMENT entitled: SCO's Privilege Log, filed by SCO
~ Group (blk) [Entry date 03/11/05]

So, what *are* privilege logs, anyway? What has just happened? And what comes next?

Privilege logs are lists of all the documents each side believes are privileged and immune from having to be turned over to the other side, with reasons given justifying categorizing the document as privileged. The logs give detailed descriptions of the documents, as you can see if you scroll down on this page, which gives a pretty good overview and an example of a log. There is even software written for lawyers to be able to write such logs. If there are any FOSS examples of such software, please leave a comment for us letting us know about it. If not, I hope someone is writing some.

What qualifies for privileged status? Things like attorney-client communications, for example, or there could be things covered by privacy laws, or certain trial preparation documents which can be privileged as work product. The legal process depends on folks being able to speak honestly with their lawyers, and they surely won't if they know the other side will get to read every email. And a lawyer needs to be able to write out what his trial strategy is going to be, without worry that the other side will be able to subpoena it.

Privilege can be absolute or qualified. Some documents might have a piece that is privileged and the rest is not. The idea is for the lawyers to try to work out between themselves what will be turned over. Here's a description of what might be included in a privilege log in the state of Nevada, as an example:

Drafting an Adequate Privilege Log

A party withholding documents based on a privilege or immunity objection must identify, as to each document: 1) the author(s) and their capacities, 2) the recipient(s) and their capacities, 3) other individuals with access to the document and their capacities, 4) the type of document, 5) the subject matter of the document, 6) the purpose(s) for the production of the document, 7) the date on the document, and 8) a detailed, specific explanation as to why the document is privileged or otherwise immune from discovery, including a presentation of all factual grounds and legal analyses in a non-conclusory fashion. The last requirement is the most essential; a privilege log must contain sufficient facts to enable a lawyer to assess the applicability of a privilege or immunity objection. Otherwise, the log is nothing more than a tally of the number of documents being withheld.  

The time and effort needed to prepare a proper log depends greatly upon the facts of any given case. In complex litigation, where documents can number in the thousands, the process may seem overwhelming. A lawyer should begin the task early and develop a coordinated system of reviewing, marking, and storing protected documents. Every effort should be made to prevent the accidental disclosure of protected information.

During the review of documents, lawyers must be vigilant in distinguishing between privileged and/or immune matter and information that is otherwise discoverable. Withholding complete documents when only portions thereof are protected is improper; if a document may be redacted in a manner that would protect any privileged or immune information, the producing party is under an obligation to redact the document and immediately supply the redacted version to the opposing party. The redacted information must be included as part of the privilege log.  

A lawyer's duty to protect a client's interest is foremost, but that obligation must be fulfilled with integrity and with a respect for the rules. When disputes over withheld documents come before a court, honest mistakes and oversights may garner a lawyer a second chance to produce a compliant privilege log. However, intentional failure to provide sufficient information in a privilege log can result in all objections being waived and significant sanctions being imposed.

You can see an example of lawyers trying to work it out between themselves in SCO's letter to IBM dated September 8, 2003, in which Mark Heise explains what he sees as the right line to draw on IBM's discovery requests:

"On Request No. 40, if you can identify the types of non-privileged documents you think might exist, then perhaps we can reach a resolution. At this time, the only documents that we can see possibly responsive would be between SCO representatives and their counsel, which obviously would be privileged. By the way, on these privilege logs, we are assuming you are not looking to have a listing of all communications between counsel in this case and the client. We certainly are not expecting to see a privilege log listing all correspondence between Cravath and IBM relating to this case. Please confirm we are on the same page on this issue. On Request No. 42, other than claiming it is 'plainly discoverable', we fail to see the relevance of a 'decision to commence or pursue other lawsuits'. If you could identify why you need these documents and the types of documents you are seeking, perhaps we can arrive as some resolution.

"Any responses to the foregoing requests will be provided in accordance with any agreements of the parties with respect to the scope and reasonableness of the requisite searches."

As you can see, they couldn't see eye to eye on what SCO should turn over in discovery, and eventually IBM attached the letter as an exhibit, Exhibit H [PDF] to their Memorandum in Opposition to SCO's Motion to Compel, one chapter in the discovery wars we are still enjoying. So to speak.

In September of 2004, SCO, in its Ex Parte Emergency Motion For A Scheduling Conference, raised an issue about a dispute with IBM over privilege related to two emails turned over to SCO by IBM by mistake, according to IBM, who sought their return:

• IBM's sole response in its opposition brief was that out of the numerous e-mails that SCO had filed under seal with its Supplemental Memorandum, two such e-mails had to be returned on the purported basis that they were privileged.

• SCO has never contested IBM's right to seek such return without first litigating the issue of whether the documents had been inadvertently produced. In response to IBM's submission, SCO stated that it would not hold back the return of the two e-mails on any such ground, but that the other documents cited in SCO's supplemental memorandum were more than sufficient to illustrate its point about its need for systematic, as opposed to haphazard, document discovery.

• Critically, SCO also explained that IBM had been unwilling to provide even the minimal information about the two e-mails that would have been required for IBM to place those documents on a privilege log in the first instance. IBM declined to provide such information in the first instance, and has since refused to do so in the face of repeated requests.

At the hearing in October of 2004, this matter of privilege came up when SCO "by mistake" read aloud one of the emails that IBM said was privileged, and that kicked off a dispute over what should and what shouldn't be privileged, but the judge ordered that part of the hearing transcript sealed. I wrote at the time, "The privileged email refers to this AIX for POWER situation. And that is all I intend to say about that. . . .Whatever SCO does, or others do, I respect confidentiality rules on the part of the court, and until it's clear this is public, it isn't, in my view, appropriate to talk about it in public, out of respect for the court." I still feel that way. If a party is seeking to keep something privileged, and it leaks out, you can't restore it to privileged status, because it's out there in public now. So, since the harm can only be prevented by respecting the process, I prefer to wait for the judge's ruling. I'd do the same if it was SCO asserting the privilege, by the way. It has to do with my respect for the legal system, which is deep, not who is claiming the privilege. I don't approve of what appears to me to be a tactic of trying to out it, prior to the judge ruling on whether it does or does not qualify for privileged status.

Anyway, the court at the hearing ordered both sides to file privilege logs and objections to the other side's logs 30 days from entry of the court's written order filed the next day. Later, there was a stipulation to allow the parties more time, and eventually an Order [PDF] ensued, giving them until March 11 to file their logs and until April 9, 2005 to object to the other side's privilege log. That is what they both did on Friday, March 10, file their privilege logs, as the Pacer notation tells us. It is of interest that it says IBM's Privilege Log, #416, is an "oversized document." Why might that be?

If a party asks for a document in discovery, and the other side refuses to turn it over, it is supposed to also provide the reason the privilege is asserted, in writing. You don't have to tell what is in the document, with precision, not the privileged matter you are seeking to protect, but you are supposed to tell the other side enough that they can take it to the judge if there is no resolution possible and enough so that they know if there is a legitimate privilege being asserted or if the party seeking discovery really wants to fight over that document.

Logs should, we've learned, include legal analysis. That, as you have seen in many of the filings we've seen in this case, can end up with oversized documents. And if you fail to list a document, you can lose the chance later, so any conceivable privilege you intend to claim needs to be on the list. Mistakes are planned for though, and you sometimes get a second chance to categorize something as privileged you mistakenly handed over. IBM handed over something by mistake. And it's costing them effort now to try to get a second chance to categorize it as privileged, something SCO is disputing. SCO is naturally going to try to take advantage of any IBM error, just like in tennis. In an ordinary court case, where both sides were acting by gentlemen's rules, the lawyers could just work it out. They each know the rules of privilege. But when one side sees a tactical advantage and doesn't care about being gentlemanly, or there really is a difference of opinion on what should and shouldn't be privileged, you end up with disputes like this one that a judge has to sort out. It isn't rare for this to happen. Litigators are usually folks who'd rather argue than eat or sleep, after all. And these details matter.

So now you know the process, and the particular applicability in this case, I think you will agree that while the process is routine, in this case, we are talking about something significant -- at least SCO thinks so -- being disputed, and both parties are taking it seriously, as well they should. Lawsuits can be won or lost based on what is allowed or not allowed in discovery, after all, which is why SCO wants whatever it can get its hands on. And I think you can see from this discussion why trial lawyers have to be good with detail.

Back in October, Marbux left a comment clarifying some details about privilege logs, and I'll reproduce it here, so you'll have the whole picture. He wrote about the history of the concept. Like everything in the law, there are waves of understanding, as cases come and go, and it's interesting to know a bit more in detail how our current understanding morphed from the original purpose:

The key line seems to be "The purpose of a privilege log is to provide written justification for the withholding of documents and to enable lawyers to resolve disputes without judicial intervention, which should be sought only as a last resort."

That statement of purpose has more than a bit of historical revisionism in it. The original purpose of the privilege log was to reduce the burden on judges, but it was also to remove an unfair advantage for the party resisting discovery by allowing counsel for the discovering party an opportunity to argue relevant issues.

Prior to the innovation of privilege logs, the usual procedure upon a claim of privilege or immunity went like this: The party seeking discovery would file a motion to compel production of privileged documents. The party opposing discovery would file a conclusory response claiming the documents were privileged. The judge would take the documents themselves into chambers to discuss and review. The judge would then decide which documents--or reasonably segregable portions theerof--had to be produced nonetheless. That procedure left counsel for the discovering party pretty much out of the loop, and forced judges to decide motions without the benefit of briefing.

The tipping point came in a case called Vaughn v. Rosen, in which the District of Columbia Circuit ruled on the Freedom of Information Act, which is closely analogous to and substantially overlaps civil discovery procedures. There, the court recognized the need for a procedure for deciding FOIA cases using what became known as a "Vaughn index," which was adapted to and became known in the civil discovery context as a "privilege log." I recommend reading the Vaughn decision to really understand the policies driving the innovation of the privilege log.

Think of the procedure as being a lot like summary judgment. The party seeking discovery files a motion to compel production. The other side files a privilege log detailing the factual basis for the claims of privilege and immunity. The moving party replies. The judge then decides whether the privilege log is sufficient, and if so, whether the parties' filings create a genuine dispute over a material fact. If the log is insufficient, then the side resisting discovery loses. If there is a genuine dispute, then the judge may take any relevant documents into chambers and review them to determine the privilege issue. The judge may also be able to decide that a given document must be produced without reviewing it.

The privilege log procedure is relatively new and is still evolving. It's not uncommon to run up against judges who aren't familiar with it and still prefer to handle privilege disputes with just an in camera review of the documents.

By the way, the reason a privilege log must identify all persons who have had access to a given document as well as their relevant capacities is to decide the issue of waiver of a privilege by disclosure. Often times, documents are disclosed to persons who have no privileged basis for reviewing them. E.g., a document may be distributed to all staff rather than just people entitled to receive legal advice. Such conduct is inconsistent with the claim of privilege and frequently constitutes a waiver of the privilege.