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Chancery Addresses Standards for Privilege Logs

Thermo Fisher Scientific PSG Corp. v. Arranta Bio MA, LLC, C.A. No. 2022-0608-NAC (Del. Ch. Jan. 18, 2022)
To assert privilege in Delaware, the asserting party must provide clear and specific reasons as to how and why privilege applies. Such that opposing counsel can comprehend the privilege asserted and challenge unsupported claims. This task is accomplished with a clear and concise privilege log listing all documents subject to privilege with individual descriptions for each. The mere presence of an attorney on the communication will not render that communication privileged, and documents must be appropriately redacted rather than simply withheld when non-privileged material exists alongside privileged legal advice. Delaware counsel should be involved in privilege log decisions.

In this case, the Court of Chancery decided a privilege dispute in expedited litigation related to non-compete agreements between the parties. The plaintiff's log included nearly 2,000 entries, 95% of which used three generic phrases in the privilege description, and 80% of which were withheld completely rather than redacted. 

Addressing the defendant's motion to compel, the Court ordered an in-camera review of 100 entries chosen by the defendant and identified deficiencies with most entries. Log entries included business advice, logistical updates, non-substantive meeting invitations, and rote summaries of meetings with defendant representatives. The Court concluded that the plaintiff likely claimed privilege due to the mere presence of an attorney on a document. In addition, the Court found that many withheld documents would be more appropriately produced with redactions to account for non-privileged material. Also of note, during the process of presenting the dispute to the Court, the plaintiff produced a revised log that voluntarily de-designated 20% of the log's contents for not being privileged. The Court noted this raised questions about the plaintiff's decision-making process in claiming privilege and producing the log.

Although the Court reasoned that the defendant's request to compel production of the entire log was arguably appropriate, the Court instead identified the key date where party communications shifted from business discussions to pre-litigation work based on a termination letter from the plaintiff. The Court ordered the in-camera review of an additional sample of entries post-dating that letter and ordered the production of all logged documents before the letter in their entirety.

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