Benchslap Of The Day: Blow Off Preparing A Privilege Log At Your Peril

Preparing a privilege log sucks, but forfeiting attorney-client privilege sucks even more.

onSeptember 19, 2016 at 12:51 PMSeptember 19, 2016 at 12:52 PM

smack slap benchslap benchslaps Preparing a privilege log is a nightmare for associates. But forfeiting attorney-client privilege for failing to prepare a privilege log is a nightmare for partners — and their clients.

The Senate Permanent Subcommittee on Investigations, chaired by Rob Portman (R-OH), is investigating Backpage.com. As explained by Professor Noah Feldman, “The committee suspects that Backpage’s online classified service is used as a vehicle for such trafficking. It issued a broad subpoena to the company, which it subsequently narrowed and directed to Chief Executive Officer Carl Ferrer.”

After Ferrer refused to comply with the subpoena, the Senate voted to hold him in contempt and went to court to get an order requiring him to comply. After Judge Rosemary Collyer (D.D.C.) issued the order, Ferrer sought a stay, invoking the First Amendment’s protection of the press. Ferrer got a temporary stay from Chief Justice John Roberts. But last week, the Supreme Court vacated the stay, sending Ferrer and his lawyers back to Judge Collyer’s court.

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From LexisNexis

Where Ferrer and his counsel got benchslapped — hard. From the order that Judge Collyer issued on Friday (citations omitted and emphasis added; gavel bang: Ian Samuel):

The October 1, 2015 subpoena required Mr. Ferrer to file a privilege log. Specifically, it “directed Mr. Ferrer to ‘assert any claim of privilege or other right to withhold documents from the Subcommittee by October 23, 2015, the return date of the subpoena, along with a complete explanation of the basis of the privilege or other right to withhold documents’ in a privilege log.” This was not a suggestion or a recommendation. The filing of a privilege log in response to a documentary subpoena is required by courts and the Federal Rules of Civil Procedure. Failure to do so constituted a waiver of the claimed privileges.

Oh, no she didn’t! Oh, yes she did:

Mr. Ferrer has not made a showing of good cause as to why he did not file a privilege log identifying which documents were withheld on the basis of attorney-client and/or work-product privilege. His motion and his reply brief are silent on this matter. Aside from the unsupported argument that he had a First Amendment right not to search for responsive documents, there is no good reason for the Court to find that Mr. Ferrer was justified in waiting over a year to identify and log privileged documents….

[S]ince Mr. Ferrer waived his claims to non-First Amendment privileges, the Court finds that the process [of producing documents] should be much simpler than what he anticipated…. [T]he Court reminds Mr. Ferrer that the only acceptable redactions are those based on privileged statements arising from, or related to, the litigation of this case, as well as “any personally identifying information on subscribers and advertisers.”