Proposals to Eliminate Document-by-Document Privilege Logs Threaten Access to Justice
Possible Federal Rules changes could be green light for privilege abuse in discovery
By Ellen Noble, Staff Attorney
Corporations are once again trying to dismantle longstanding Federal Rules of Civil Procedure designed to ensure that the civil justice system is fair and transparent—that it uncovers the truth and holds bad actors accountable.
This time, Rule 26(b)(5)(A) is on the chopping block. This rule requires a party withholding material as “privileged” to describe the nature of the material, without revealing its contents, so that other parties can assess whether it should be privileged. Such descriptions are included in a privilege log.
Sounds reasonable. But corporations say this rule is too burdensome and that they should be allowed to claim general categories of information are privileged without describing, or even identifying, particular documents.
Why Rule 26(b)(5)(A) Matters: A Look Back in Time
Corporations characterize the rule as an excessive procedural formality, but in reality, the rule is the only thing standing in the way of rampant misuse and abuse of the attorney-client privilege and other privilege doctrines.
For decades, for example, the tobacco industry successfully fended off consumers’ claims that tobacco use caused adverse health effects like cancer. How? By hiding from discovery their own scientific studies that proved smoking causes cancer and that nicotine is addictive. Tobacco companies would involve lawyers in their scientific research and then assert that all evidence showing what these companies knew about the health dangers of tobacco were shielded by the attorney-client privilege.
You might be thinking, “No way! That’s obviously illegal!” And you’d be right. But before 1993, there was no requirement in the Federal Rules of Civil Procedure that any information be provided when a party withheld materials as privileged. Consumers simply had to trust that the tobacco companies’ attorneys were properly designating documents as privileged, even though billions of dollars and the health of millions of Americans were on the line.
The Judicial Conference Advisory Committee on Civil Rules realized this practice, where privilege determinations could not be scrutinized, made no sense in an adversarial proceeding. The Committee amended Rule 26(b)(5)(A) to require parties that withhold material as privileged to “expressly make the claim” and to describe the materials withheld in a manner that would “enable other parties to assess the claim.” Parties then began exchanging privilege logs, providing opposing counsel with information about the withheld documents.
Less than a year after Rule 26(b)(5)(A) was amended, the State of Minnesota challenged the tobacco industry’s assertion of privilege over tens of thousands of documents. On what basis? The privilege log. The privilege log included, for example, a document from a scientist in 1957 entitled, “Cigarette Smoking Termed Lethal Habit With Some Addiction Involved,” and a host of other documents produced by scientists regarding cancer research, smoke-inhalation studies, and the health effects of different cigarette ingredients. The tobacco company claimed all of these documents were subject to attorney-client privilege.
In response to Minnesota’s challenge, the court-assigned Special Master took a closer look and determined that 39,000 documents that had been withheld were, in fact, not privileged and that the tobacco attorneys had been aiding and abetting the industry’s fraudulent practices. The district court adopted the Special Master’s findings and ordered that the documents be turned over. The tobacco companies asked the appellate court to intervene, but it refused. They then sought review from the Minnesota Supreme Court and U.S. Supreme Court, but both declined to weigh in on the discovery ruling.
The ruling broke open the litigation, as the tobacco companies became unwilling to hear what juries would make of the suppressed documents. The case filed by Minnesota then settled, and was followed by settlements in a number of other states. Uncovering the companies’ abuse of the attorney-client privilege was deemed “one of the most significant public health achievements of the second half of the 20th century.”
Of course, the tobacco litigation is an extreme example. As the Minnesota Supreme Court determined, a number of the tobacco industry attorneys actually committed fraud. But there are many examples of parties abusing attorney-client privilege. The manufacturer of Dalkon Shield, for example, also used the attorney-client privilege to improperly withhold documents concerning the safety of a defective intrauterine device that injured 200,000 women. Rule 26(b)(5)(A) safeguards against such abuse.
And even though most attorneys would never abuse privilege doctrines, they may—in good faith—misapply them. Law-abiding corporate attorneys still play with chalk dust on their cleats. In serving their clients, they may play on the boundaries of the law, taking advantage of legal ambiguities and advocating for a broader interpretation of attorney-client privilege. When these hard legal questions arise, corporations should not get to decide the answers for themselves, without any opposition or judicial review. That leads to corporate impunity—and that’s where we will be if Rule 26(b)(5)(A)’s privilege log requirement is erased.
So what can we do to preserve Rule 26(b)(5)(A)?
Public Justice recently filed comments with the Judicial Conference Advisory Committee on Civil Rules explaining why Rule 26(b)(5)(A) should be left alone. Our comments, authored by Seth Lesser and Amir Alimehri of Klafter Lesser LLP, argue that the general practice of document-by-document privilege claims should not be abandoned for a new approach that lets parties assert privilege over large categories of documents. The names, dates, and subjects listed on a privilege log provide a mechanism for challenging over-broad or improper claims of privilege.
If you are an attorney who represents individuals challenging illegal corporate conduct, you may want your voice to be heard in this process. The deadline for comments was August 1st, but the Advisory Committee has said it will consider any comments filed after that deadline as a suggestion. So consider writing a comment on your experience with privilege logs and emailing it to RulesCommittee_Secretary@ao.uscourts.gov. The formal invitation for such comments is available here.
Help us stop the attacks on privilege logs in their tracks, and keep the judicial process transparent, fair, and effective.
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