Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of September 7-13.
Here’s what’s happening.
On the EDRM Blog, Michael Berman writes about a partially successful metadata privilege log challenge in Jeffries Funding LLC v. Dasagroup Holdings Corp. Dasagroup’s privilege log at issue included these fields for each row corresponding to a withheld email document:
- Beginning and ending Bates numbers
- Custodian
- Sent Date and Sent Time
- Email From
- Email To
- Email CC
- Email BCC
- Email Subject
- File Name
- File Author
- Privilege Claimed
- Privilege Description/General Subject Matter
Dasagroup redacted some of the “Email Subject” and “File Name” fields, which Jeffries challenged, asserting that the redactions led to insufficient information being provided about the subject matter. Dasagroup argued that the redactions were proper because they applied to privileged email subjects and file names. The court agreed: “To the extent an email subject line or a file name reasonably constitutes an attorney-client communication in and of itself, redacting that information from a privilege log does not run afoul of the Ninth Circuit’s standards or Rule 26(b)(5).”
Jeffries was successful on two other challenges, however. It argued that the “Privilege Description/General Subject Matter,” was also deficient because for each document with a redacted email subject and file name, the “Privilege Description/General Subject Matter” line did not provide any description of the contents or even general nature of the withheld document. The court agreed and ordered Dasagroup to serve an amended privilege log that provided “sufficient textual description of the nature of the document (i.e., a brief statement of the subject of the content) to justify the assertion of privilege.”
Also, Jeffries successfully challenged the privilege log entries for email attachments that did not provide information about the author, recipient or email subject. The general subject matter field only provided a generic privilege assertion without describing the document. The court agreed with Jeffries, writing that “without further information … it is difficult to ascertain” whether the attachments were themselves privileged communications. The court ordered Dasagroup to serve an amended privilege log to justify the assertion of privilege as to each withheld document.
Berman, respectfully, wrote why he disagreed with the court here. “I suggest that information about what a client sent to their attorney is privileged, even though the underlying document itself is not privileged. The underlying document should be produced separately if it is not privileged in itself and is responsive.”
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