Court Of Chancery Sanctions Bad Privilege Log
This post was written by Edward M. McNally and Katherine J. Neikirk.
This is the latest in a series of Court of Chancery decisions enforcing the discovery rules. In this case, plaintiff challenged his disassociation from the defendant. The defendant's privilege log used five vague descriptions for 97% of the withheld documents. In all of these descriptions, defendant simply referred to plaintiff's matter with no additional detail, such as whether the description related to plaintiff's resignation, his compensation or a partnership vote. The defendant also failed to identify any of the attorneys on the privilege log, despite plaintiff's requests, until briefing before the Court. Vice Chancellor Laster held these deficiencies were an improper assertion of privilege that resulted in waiver of the privilege. Accordingly, the Court ordered production of the documents withheld for privilege and inadequately described on the privilege log. The Court denied defendant's request for certification of an interlocutory appeal, but granted a limited stay of production of the documents while defendant sought certification of an interlocutory appeal with the Supreme Court.
The opinion clearly sets out what must be on the privilege log. Failure to comply is now certain to bring a similar sanction.