In Equal Employment Opportunity Commission v. BDO USA, L.L.P.¹, the Fifth Circuit clarified how to use a privilege log to protect privileged documents.
The EEOC subpoenaed information in connection with an employment discrimination investigation. BDO withheld documents, claiming attorney-client privilege, and submitted a privilege log. The EEOC moved to compel, claiming BDO’s privilege log failed to establish the attorney-client privilege. The magistrate judge found BDO’s log adequate and declined to conduct an in camera review. The district court affirmed. The Fifth Circuit vacated and remanded.
The Fifth Circuit found BDO’s privilege log insufficient to establish a prima facie showing of attorney-client privilege. Specifically, the court found three types of deficiencies that prevented the court from determining the applicability of the privilege:
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entries that were vague or incomplete,
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entries that failed to distinguish between legal advice and business advice, and
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entries that failed to establish that the communications were made in confidence and that confidentiality was not breached.
Vague or Incomplete Entries
A privilege log’s description of each document and its contents must provide sufficient information to permit courts and other parties to test the merits of the privilege claim. Blanket claims of privilege, generalized descriptions of a document, and conclusory statements that a document is privileged are not sufficient to prove a privilege claim. Rather, the privilege’s proponent “must provide the court with enough information to enable the court to determine privilege, and show by affidavit that the precise facts exist to support the claim of privilege.”
BDO’s log failed to provide sufficient detail to tell if the entire document or portions of it were protected from disclosure. The log did not indicate, for example, whether a particular entry consisted of a single email, or a string—a distinction that may be dispositive as to whether a privilege applies. Nor did BDO present affidavits or other evidence that would allow the court to assess whether a privilege applied.
Distinction Between Legal & Business Advice
“[A] confidential communication between client and counsel is privileged only if it is generated for the purpose of obtaining or providing legal assistance . . . .”
BDO’s privilege log did not provide sufficient detail to meet its burden of allowing opposing counsel or the trial court to determine whether entries merely described as “legal advice,” or that included or courtesy copied attorneys, actually contained privileged legal advice.
Confidentiality
“It is vital to a claim of [attorney-client] privilege that the communication have been made and maintained in confidence.”
BDO’s log was too vague to determine “which BDO officials were properly within the sphere of confidentiality or whether dissemination to some employees broke the confidentiality, even if confidentiality initially existed.” The log left open questions about whether:
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emails courtesy copied to a third party remained privileged;
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matters communicated to attorneys were done so with the intention of remaining privileged; or
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non-attorney individuals to whom communications were sent were within the sphere of confidence.
In light of these deficiencies, the Fifth Circuit held that BDO failed to establish a prima facie case of privilege, and that in camera inspection of the documents likely would be necessary.
¹No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. May 4, 2017)
