Privilege log disputes are ubiquitous as parties quibble over descriptions that often reveal few details regarding the nature of privileged communications. These disputes, in turn, give rise to in camera reviews of privileged documents as courts seek additional detail regarding those claims. While in camera reviews are not supposed to issue as a matter of right, they have become increasingly widespread in recent years. This trend is fairly surprising given the near universal dislike that courts express toward in camera reviews.
Bucking this trend is a recent federal court case from the Northern District of Illinois in which the court found that in camera review was inappropriate. Weir v. United Airlines held that in camera review was unwarranted where privilege log challenges were merely based on “speculation.”Weir is particularly instructive as its resolution of the privilege dispute—emphasizing fulsome privilege log descriptions by the responding party—signals the need for alternatives to traditional privilege logging options.
Weir v. United Airlines
In Weir—a wrongful termination case, United withheld 50 documents as being privileged, detailing its objections on a privilege log that it amended three times over a period of nine months. In motion practice, plaintiff argued that 35 of the 50 documents were not privileged. Based primarily on the descriptions in the log, plaintiff asserted the documents at issue were non-privileged communications between lay corporate employees that did not include a lawyer or which perfunctorily copied a lawyer. Plaintiff also contended that United waived privilege over a single document it had inadvertently produced in the lawsuit. Finally, plaintiff asked the court to review in camera the 35 documents. With so few documents in play, plaintiff argued that in camera review was “especially appropriate.”
Addressing the Privilege Log Shortcomings
Regarding the communications between lay employees, the court found that United (despite four different attempts) had not given a fulsome description for the corresponding entries on its privilege log. Statements such as “[e]mail correspondence at the direction of counsel sought in order to provide legal advice” were “vague and generic” and did not provide sufficient detail to allow plaintiff to assess United’s claims of privilege. While United still needed to offer “more detail as to the specific matters about which legal advice was sought without disclosing matter itself privileged,” the court rejected plaintiff’s assertion that the privilege could not attach to emails between lay employees. Relying on the Supreme Court’s longstanding opinion in Upjohn v. United States, the court observed that such communications which reflected information they obtained at the request of United’s in-house counsel were clearly privileged.
Next, the court rejected plaintiff’s argument that United perfunctorily copied its in-house counsel on emails in order to mask them with a veneer of privilege. Examples of these more detailed entries included requests for legal advice regarding ‘‘’suspicions of FMLA abuse,’ ‘approval of absences in light of suspicious documentation,’ ‘Wier's absences,’ and ‘absences in light of suspicious paperwork.’” Finding these descriptions adequate, the court deemed plaintiff’s position—“employers will often copy their attorneys as a way to support a claim of privilege and ‘that's probably what's going on here’”— as nothing more than “speculation.”
The court also disagreed with plaintiff on waiver and held that United inadvertently produced a privileged document pursuant to Federal Rule of Evidence 502(b). In particular, the court declined to adopt plaintiff’s position that United had waited too long (nine months) to claw back the document in question, especially since plaintiff was partially responsible for this delay. Plaintiff apparently found the privileged document, but then waited to notify United of its existence until sometime later when she argued that its production resulted in a subject-matter privilege waiver (a position the court also rejected).
No In Camera Review by the Court
The court closed its opinion by denying plaintiff’s request that it review in camera the documents covered by the disputed privilege log entries. While observing that in camera reviews are “increasingly common,” the court rejected the notion that “an in camera review should be granted as a default.” Indeed, doing so would simply encourage challenges to privilege logs and convert privilege logging into a “mere formality,” particularly for disputes involving small numbers of documents. Instead, in camera review should be reserved for those instances where a “well-founded basis” for doing so exists.
Explore Alternatives to Traditional Privilege Logging
Weir highlights four recommendations that litigants and courts can follow for addressing privilege logging or their resulting disputes more effectively.
First, Weir signals the need for responding parties to explore alternatives to traditional privilege logs. Preparing descriptions that adequately memorialize the nature of the documents withheld under a privilege objection is no easy task. Unlike Weir, which involved relatively few documents, privilege logs can run for hundreds of pages and memorialize thousands of documents. In those instances, it can be unduly burdensome for responding parties to prepare and then scrutinize each log entry to ensure sufficiency. Instead, responding parties should consider using a categorical log, a metadata log, or a log reflecting a sample of withheld information as cost-effective alternatives to traditional logs that separately identify every privileged document.
Second, Weir is instructive on the notion of judicial restraint. Like Weir, courts should not agree to in camera reviews unless truly merited by the circumstances. Many judges rightfully complain about the burdens in camera review places on them and their staff. And yet, courts often seem too willing to tolerate in camera reviews on the slightest of showings. As Weir makes clear, in camera review should only be afforded when the requesting party has made an appropriate showing.
Third, Weir confirms the need for responding parties to obtain a Federal Rule of Evidence 502(d) non-waiver order. While United ultimately satisfied the legal inadvertence requirements under Rule 502(b), it could have avoided motion practice on this issue altogether had a properly drafted 502(d) order been entered by the court.
Fourth, Weir spotlights the importance of responding parties advancing arguments that are based on fact-specific good cause and not speculation. Plaintiff was rightfully dissatisfied that the fourth iteration of United’s privilege log still included flimsy descriptions of privileged documents. However, plaintiff should have restricted its arguments to those matters rather than offering speculative positions which the court found to be meritless. This was especially true regarding the inadvertent production issue in which plaintiff seemingly waited to alert United about her discovery of the privileged document in order to gain an advantage in the litigation.
 See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 265 (D. Md. 2008) (observing that in camera reviews “can be an enormous burden to the court, about which the parties and their attorneys often seem to be blissfully unconcerned.”).
Weir v. United Airlines, Inc., No. 19 CV 7000, 2021 WL 1517975 (N.D Ill. Apr. 16, 2021).