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Privilege Logs and Inadvertent Waiver: Lawyer Beware

By Charles S. Fax, Litigation News Associate Editor

Judges often reach differing conclusions in the same case, as attested by the frequency of minority opinions. Still, it can be unsettling to the practitioner when the same facts and legal issues produce opposite results in straightforward cases where the law should be clear. It is even more disturbing when the ruling concerns an attorney’s inadvertent waiver of the attorney-client privilege. Two opinions in neighboring jurisdictions, one by the Maryland Court of Special Appeals and one by the U.S. District Court for the District of Columbia, illustrate this problem and give notice to the bar to tread carefully in an area where judicial opinion is divided, as the consequences of a misstep can be draconian.


In Gallagher, Evelius & Jones, LLP v. Joppa Drive-Thru, Inc. [PDF], Maryland’s intermediate court of appeals reviewed an order issued by the Circuit Court for Baltimore County granting a motion to compel production of documents by a non-party, a prominent Baltimore law firm, Gallagher, Evelius & Jones. The firm had previously represented the plaintiff in the underlying corporate transaction giving rise to the suit but was not counsel in the litigation. The defendant issued a subpoena for certain documents in the law firm’s files, contending that they would support defendant’s theory of the case. The law firm objected to portions of the subpoena on the basis of attorney-client privilege. The firm produced non-privileged documents together with a 40-page privilege log listing each document withheld from production and the basis for the withholding. The defendant’s subsequent motion to compel asserted that the law firm’s alleged prior joint representation of both parties to the suit vitiated any claim of privilege.


The circuit court ignored that issue in granting the motion, basing its decision on the fact that the law firm’s opposition memorandum was improperly formatted. In its memorandum the firm generalized about the existence of privilege but did not provide specificity as to the particular rationale for withholding each document. The court viewed the accompanying privilege log, detailed though it may have been, as insufficient to fulfill that function. Rather, the basis for withholding each document should have been set forth in the opposition, separately aligned with each request and objection so that “the judge ha[d] only two papers to review,” the motion and the opposition.


The appellate court affirmed the lower court without ruling on the merits of its analysis, holding simply that trial courts have broad discretion in ruling on discovery matters and that absent an abuse of discretion—which did not occur here—the appellate court would not consider the matter.

On similar facts, a decidedly different result was reached by U.S. Magistrate Judge John Facciola in Andrea Davis v. Grant Park Nursing Home [PDF], decided three days before Gallagher. Defendants asserted attorney-client privilege in response to a document production request and submitted their privilege log as substantiation. Judge Facciola observed that the log was wholly inadequate for its intended purpose, providing “no information whatsoever about the nature of the document(s)” and the circumstances of their creation that would support a claim of privilege. The court noted that case law would support a finding that “the assertion of the privilege in these logs [is] so woefully deficient that I could deem the privilege waived.” Rather than reach that result, however, the court, believing that the deficiencies could be remedied, ordered the defendants to try again, accompanying its directive with detailed instructions on how to prepare a proper index of privileged documents amenable to judicial scrutiny to ascertain whether the privilege applied.


The reasonableness of Judge Facciola’s measured approach seems self-evident in light of the absence of prejudice and the possible serious adverse consequences for counsel found to have improperly waived their client’s privilege. When applied to the Maryland case, a “second bite at the apple” would appear even more judicious given that the offending respondent was not even a party to the suit. Still, on its face the Maryland case was not wrongly decided, and as there was no appeal to Maryland’s highest appellate tribunal, it stands as good law.


Where does that leave practitioners? They are reminded that very close scrutiny must be given to the forum’s requirements and predilections for formatting an opposition that asserts privilege in response to a motion to compel. What may be tolerated in one forum—in this case, the federal court in the District of Columbia—may create exposure only a few miles up the road, in Maryland. Caveat defensor.


Editor’s Note: This column contains the views of the author and not necessarily those of the ABA or Section of Litigation. Litigation News hopes this column will spark interest and debate. We welcome your comments and viewpoints on this issue.


Keywords: litigation, civil procedure, inadvertent waiver, judicial opinion


 

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