BY ROSS MOORE AND JAMES STONEAs a general rule in Georgia for both federal and state courts, the scope of discovery is limited to “any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and relevancy is defined as anything “reasonably calculated to lead to the discovery of admissible evidence.” O.C.G.A. § 9-11-26(b). But, both plaintiffs and defendants often withhold the dissemination of information or documents (summarily: “material”) on the basis that the withheld material is privileged. Often, courts must be called upon to intervene in the discovery dispute that undoubtedly follows after the requesting party contends the privilege assertion was used incorrectly, or in the alternative, the privilege is too general for any party to make a reasonable challenge or for a court to make a ruling on the claim. As many trial lawyers know from experience, courts do not gleefully anticipate discovery disputes, and can often backfire on either the requesting party or the withholding party for a myriad of reasons.
If you or an opposing litigant withhold requested material based on privilege alone, rules may have been violated. For the past 25 years, Fed.R.Civ.P. 26 has required the party asserting a claim of privilege to provide the requesting party and the court a “privilege log” that lists the material the party asserting the privilege is attempting to withhold. The log must state the specific privilege asserted. This rule is relatively new in Georgia and is still somewhat disregarded by oblivious or ignorant litigants.
In June 2015, the Georgia Supreme Court approved an amendment to the Uniform Superior Court Rules with the addition of Rule 5.5, which mirrors Fed.R.Civ.P. 26(b)(5).
WHAT DOES A PRIVILEGE LOG LOOK LIKE AND WHAT IS REQUIRED?
A privilege log is a document created by the privilege-asserting party that itemizes the material being withheld from production. While there is no set rubric or standard form for creating a privilege log, federal and state courts have interpreted Fed.R.Civ.P. 26(b)(5) and U.S.C.R. 5.5 to require the party asserting the privilege to include enough information in the log so that the opposing party can accurately identify the item subject to the privilege assertion and give the court sufficient information to make a ruling on the assertion.
So, the question then becomes: “What is enough information?” Start with the basics. A simple privilege log listing documents withheld from production should at least include the following1:
• The date the document was created;
• A description of the document;
• Type of privilege claimed (e.g., attorney-client communication or documents created in anticipation of litigation);
• The applicable discovery request to which the document is responsive, but is being withheld under the claim of privilege; and
• Bates Number Range (if applicable).
In general, what should be included is simply enough information to alert the opposing party of the identity of the document without revealing the confidential material sought to be protected by the privilege claim.
WHAT HAPPENS IF A PARTY FAILS TO PRODUCE A PRIVILEGE LOG?
A party withholding material that it argues is privileged has the burden of establishing the existence of the privilege. One way to do this is for the party asserting the privilege to produce the privilege log. Failing to produce a privilege log is fatal to the claim of privilege. In Georgia, the courts have routinely held that objections not timely and sufficiently asserted are deemed waived.2 This includes objections to disclosure or production of information based on privilege. If the party claiming privilege also fails to produce the privilege log, they have waived the claim of privilege. While no Georgia case is directly on point, because the Georgia Civil Practice Act is modeled after the federal rules, Georgia courts can look to federal decisions when interpreting the Civil Practice Act.3
Federal judges have ruled that general or blanket claims of privilege are not sufficient and do not preserve the privilege claim.4 Generalized claims of privilege do not give the opposing party any indication of what items are being withheld, nor do they give the court any guidance on how to rule on the claim of privilege. When settling disputes concerning what is and what is not privileged, the courts must conduct an in camera review of the material in order to rule on the claim of privilege. If the party asserting the claim of privilege does not clearly identify the material withheld, he/she has not met their burden of establishing the material is protected by privilege.
WHAT DO I DO IF I FEEL THE LOG PROVIDED IS FAULTY?
As with any discovery dispute, the parties should attempt to resolve any issues amongst themselves before involving the court. Courts do not like refereeing discovery disputes, and discovery disputes only serve to delay judges and juries deciding cases on the merits. If it is clear to the parties that information sought during discovery will be subject to privilege claims, it is possible that the parties enter into a mutually agreed upon consent protective order that sets the standard for how to claim privilege and the manner and means about which a party may challenge the privilege. Doing this can curtail the need for judicial intervention in the discovery process.
However, every trial lawyer knows that each case is different: different facts, different theories, and different opponents. There will be a time where you must challenge an assertion of privilege and the sufficiency of a privilege log. For starters, because challenging the sufficiency of a privilege log is a discovery dispute, Unif. Super. Ct. R 6.4 and O.C.G.A. § 9-11-37 control the process of resolving the dispute. Begin with your 6.4 letter attempt to resolve the matter before seeking court intervention and compulsion of the privilege log or privileged material. In your letters or your “meet and confer” with opposing counsel, attempt to narrow the list of disputed material. Truncating the list of disputed material will (1) prevent the court from being forced to entertain an unnecessary dispute and (2) put the material at issue squarely in focus before the judge.
The style of the hearing or in camera review of the alleged privileged material will depend on the court and judge hearing the case. Check with your judge’s clerks and support staff to get an understanding of how he or she prefers to conduct the hearing or review. Knowing that beforehand will undoubtedly pay dividends in this process.
The purpose of the privilege log is to assist the litigants in the discovery process by allowing parties who wish to assert a privilege claim to do so without revealing the confidential information to the requesting party. They can be helpful in curtailing discovery abuse and logjams if used properly. While not purely defined in either the Federal Rules of Civil Procedure or the Georgia Civil Practice Act, the courts have determined that a privilege log must sufficiently list and describe the material withheld or else the privilege claim is waived. If one is to push the party asserting the privilege into providing the allegedly privileged or protected material, he or she must spend the necessary time engaging the party asserting the privilege prior to involving the courts in order to prove their good faith efforts to resolve the dispute. Otherwise, the courts will not receive any motion to compel with open arms. ●
Ross Moore is the founder of Ross Moore II, P.C. in Atlanta. He is a 2017 graduate of the GTLA Leadership Education & Advance Direction (LEAD) Program, and currently serves on the Verdict Editorial Board. He can be reached at firstname.lastname@example.org.
James Stone practices in the Atlanta office of Boone Law where his practice areas include products liability, medical negligence, wrongful death, and personal injury, as well as commercial and consumer litigation. He is a member of the Verdict Editorial Board and a 2017 graduate of the GTLA LEAD Program. He can be reached at email@example.com.
Federal Rule Compared to Georgia Rule
Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the
information is privileged or subject to protection as trial preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature and details of the documents, communications, or tangible things not produced or
disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
UNIFORM SUPERIOR COURT RULE 5.5
(1) Information withheld. When a party withholds information otherwise discoverable by claiming that the
information is privileged or subject to protection as trial preparation material, the party shall:
a. Expressly make the claim; and
b. Describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess such claim.
1 § 21:9. Asserting privileges in discovery, Ga. Law Of Torts Preparation For Trial § 21:9 (2018 ed.).
2 Smith v. National Bank of Georgia, 182 Ga. App. 55, 57, 354 S.E.2d 678, 680 (1987); Tompkins v. McMickle, 172 Ga. App. 62, 321 S.E.2d 797 (1984); Ale-8-One of America, Inc. v. Graphicolor Services, Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983); Drew v. Hagy, 134 Ga. App. 852, 216 S.E.2d 676 (1975).
3 “Because Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority and are given weight by Georgia courts. See Ambler v. Archer, 230 Ga. 281, 287(1), 196 S.E.2d 858 (1973).” WellStar Health Sys., Inc. v. Kemp, 324 Ga. App. 629, 638, 751 S.E.2d 445, 453 (2013), cert. denied (Mar. 10, 2014); Fuller v. Heartwood 11, 301 Ga. App. 309, 312, 687 S.E.2d 287, 290 (2009); Barnum v. Coastal Health Svcs., 288 Ga. App. 209, 215(2)(b), 653 S.E.2d 816 (2007).
4 Meade v. General Motors, LLC, 250 F.Supp.3d 1387 (N.D. Ga. 2017) (employer waived attorney-client privilege claim by asserting overly broad privilege claim and failing to produce a proper privilege log). See also Pensacola Firefighters’ Relief Pension Fund Bd. of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589, 592 (N.D. Fla. 2010) (noting abundance of district court case law holding that a party claiming privilege is obliged to produce a privilege log and its failure to do so means the privilege is waived).
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