Prompt Response to Discovery Requests Required to Preserve Privilege

Document discovery, particularly in complex business cases, is time-consuming, oftentimes tedious, and generally expensive.  Procrastinating in the face of discovery requests, however, may result in the unintended waiver of the attorney-client privilege.

In Burlington Northern and Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F3d 1142 (9th Cir 2005), the Ninth Circuit held that failure to produce a detailed privilege log within the 30-day time period for responding and objecting to document requests constituted a waiver of the attorney-client privilege.  The court did not make the 30-day period a bright line rule, although it did recognize that serving a proper privilege log within that time cannot result in a waiver.  The court said that timeliness determinations must be made on a case-by-case basis, analyzing 1) the degree to which the assertion of the privilege is detailed enough to allow opposing counsel and the court to evaluate the assertion of privilege; 2) timeliness of the objection and production of a detailed log; and 3) the scope of the document production and or other circumstances that make responding difficult (or, for that matter, make it easier).

Why care?  Waiver of the attorney-client privilege can have a devastating impact on litigation.  This is another example of an ounce of prevention being preferable to a pound of cure.  Parties to complex litigation need to recognize that prompt compilation and analysis of requested documents is a high priority, not something to be ignored or delayed.