That dilemma was highlighted during a recent court case--but first, a few definitions.
In litigation, one side in a dispute is not required to turn over to the other side any documents that contain privileged communications between attorney and client. The decision not to produce such materials must be documented in what the legal profession calls a privilege log.
For each withheld document, enough information must be included on the log so the opposing side can understand or test whether it was properly withheld. A typical privilege log entry will provide relevant information about each document without divulging the privileged or work product substance. So, for instance, you would find items such as the name of the author and the people who were copied and a general reference to the subject matter.
All the rules relating to this sort of thing were adopted prior to the electronic age. In this new age, the number and volume of communications has increased exponentially with the ease of electronic communications.
The issue of proper procedure recently came up in a case when the question arose whether a privilege log has to separately address every one of many e-mails withheld from production. The party resisting such detailed efforts argued against the sheer burden of the exercise. As explained below, the court agreed.
In the case of Fifty-Six Hope Road Music Ltd. v. Mayah Collections, Inc., the plaintiffs alleged that they were the exclusive owners and licensees of all trademark and publicity rights in the name, image and likeness of the late reggae musician Bob Marley. They argued that the defendants continued to sell Bob Marley T-shirts beyond the rights they had obtained in a license agreement. The defendants denied this allegation.
As the case progressed, the defendants wanted a look at the plaintiffs' e-mails. In addition, they also wanted privilege log entries for each of the hundreds--and possibly thousands--of e-mail communications between the plaintiffs and their counsel.
The plaintiffs objected. If the court ultimately ordered them to comply, they argued that the defendants should reimburse them for their expenses.
The federal judge in Nevada agreed that the burden of the exercise would outweigh its value. But rather than requiring a separate privilege log entry for each withheld e-mail, the judge took a different tack.
First, he required the plaintiffs provide under oath a declaration they would make a good faith effort to locate and produce all relevant documents and e-mails.
What's more, they were to produce a reasonable estimate of the number of privileged e-mail communications that existed.
The judge further ordered the plaintiffs to review the e-mails to ensure that only truly privileged and confidential electronic correspondence was being withheld.
Lastly, they were to make sure the withheld e-mails had not been shared with anyone who did not fall within the circle of the privileged relationship.
It is worth noting that this streamlined process deprives the party seeking the discovery of e-mails of some degree of oversight. If a party truly is interested in more detail, it always can volunteer to pay the shipping for a detailed privilege log.
However, plainly put, the judge greatly eased the burden of the plaintiffs in justifying their withholding of e-mails as privileged or a confidential work product. If this approach is followed in other cases, life will get a lot easier for attorneys and their clients.