Deficient privilege log must be corrected

Where a company’s privilege log contained more than 3,581 entries, but it was not clear that each email in each chain and each attachment included in each chain was privileged, whether documents “reflecting” legal advice were privileged and the log did not list the author/sender or recipient(s) for many of the documents withheld, the company must update the log.

Background

The government served 36 administrative subpoenas upon the custodian of records for Orexo US Inc. on July 14, 2020. Orexo sent the government a privilege log containing 3,581 entries related to the subpoenas. The government contends that the privilege log is deficient in several ways.

Chain emails

The first category of privilege log entries that the government asserts is deficient is the entries that list “chain emails” but do not specify each individual document withheld, nor do the entries specifically list any attachments. “Generally, each e-mail within a particular line of discussion must be analyzed separately for privilege purposes.” The privilege log entries by Orexo for its “chain emails” would be sufficient only if every email in the chain and every attachment to these emails qualified as privileged for the reasons stated in the entry.

The government has asserted that there are no redacted documents in the production Orexo made, and it argues that this fact suggests that Orexo has withheld entire email chains, and their attachments, even if only a portion of the chain qualifies as privileged. The court’s brief cursory review of the privilege log would tend to support the government’s argument. Furthermore, to be covered by the attorney-client privilege, a communication must have been made primarily for legal advice, not for business advice. A number of the chain emails listed on the privilege log appear to have originally distributed weekly sales figures.

Orexo must amend its privilege log regarding these chain emails. While I will not require each email and attachment to be listed individually, I will require Orexo to clarify that it is asserting that each email in each chain and each attachment included in each chain is privileged based on the description provided. If this is not so, I will order that Orexo update its production to produce any nonprivileged emails or attachments contained in these chains.

Privilege

The government also asserts the privilege log is deficient in that many entries do not state that the withheld document contains legal advice or information shared with counsel to obtain legal advice. Instead, the privilege log lists many documents “reflecting legal advice.” The privilege log also contains documents described as “Memo prepared at direction of counsel,” “Contract prepared at direction of counsel” or “Agreement prepared at direction of counsel.”

While it is possible that a document “reflecting legal advice” could contain privileged information, it appears that Orexo purposefully used this language to convey a separate category of document in that other entries clearly state that a document was withheld because it was a document “discussing legal advice from counsel,” “containing legal advice,” “providing legal advice,” “containing request for legal advice” or “seeking legal advice.”

At oral argument, Orexo’s counsel could not confirm that the word “reflecting” had been used synonymously with “containing.” Orexo must update the privilege log to confirm that the documents withheld from production because they reflect legal advice actually contains legal advice or information shared with counsel to obtain legal advice. Orexo must also update the privilege log to confirm that the documents withheld because they were “prepared at direction of counsel” actually contain legal advice or information shared with counsel to obtain legal advice.

Compliance

The government also argues that the privilege log is deficient in that it does not list the author/sender or recipient(s) for many of the documents withheld. While the court’s order establishing the privilege review protocol does not explicitly require that the author/sender and/or recipient(s) of each withheld document be listed on the privilege log, it does require that sufficient facts be provided for each document withheld to allow the government to assess the validity of the privilege claim.

For communications, the identities of author/sender and the recipients, thus, are necessary to allow the government to assess the validity of the privilege claim. For documents that are not communications, the identity of the author or custodian of the document is necessary to assess the validity of the privilege claim. Orexo must update the privilege log to identify the author/sender/custodian of each document listed and any recipient of the document.

Government’s second motion to compel granted.

In re: subpoenas 2019R00561-A0001 through 2019R00561-A0036, Case No. 1:20-mc-00013, May 26, 2022. WDVA at Abingdon (Sargent). VLW 022-3-222. 9 pp.