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What is the proper procedure for responding / objecting to a…

What is the proper procedure...
What is the proper procedure for responding / objecting to a privilege log that was sent after I requested an unredacted copy of
business records (alleged call log) covering several years before litigation began (the reason also involves supposed communication between the business and a law firm not involved in the litigation). Motion? Objection?
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Answered in 11 minutes by:
3/18/2018
Attorney Wendy
Category: Legal
Satisfied Customers: 491
Experience: Member at Keefer & Keefer LLC
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Hello. My name is ***** ***** I am an attorney. The method for objecting to or challenging a privilege log would be what is known as a Motion to Compel. Essentially, you file a motion to compel a more complete response based on your position that the privilege(s) claimed do not protect the particular document or information.

If the claimed privilege is attorney-client, just be aware that that privilege will protect any communications between an attorney and his or her client about any matter, even if not about the particular case currently pending. The privilege would be waived if a third-party who is not part of the attorney-client relationship was included in the communication or if the claims in the case involve malpractice of that lawyer and the client is the one asking for the information - since the privilege belongs to the client and not the attorney.

I hope this helps. If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Customer reply replied 1 month ago
Thanks, ***** ***** helpful. The log was created by a non-party to the action (the basic servicer for a bank and the bank is claiming the servicer is their agent but the bank is the only defendant scenario.) The majority of the redacted material supposedly involves the servicer and a previous law firm. The log is titled "The Bank" as Trustee...'s Privilege Log. It never mentions the current defendant or the current law firm . Also, isn't a sworn affidavit/declaration by the attorney compiling the log required?

The bank is permitted to have a third party provide the service of compiling the privilege log, but that doesn't mean they did so correctly or that the privileges asserted are correct. And, non-parties, who have been subpoenaed to produce documents for example, have the same rights of redaction and assertion of privilege as the bank itself or any party. That said, the key is to make sure you have enough information in the log (especially in the description of the document) to be able to evaluate if the privilege is appropriate, as that is the purpose of such a log. I am unaware of a required affidavit, but I will take a look to see if I find anything.

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There is a requirement that a records custodian provide an affidavit describing how documents were identified and produced, that the person is the custodian of the records (keeper of the records), that the records were maintained in the ordinary course of business and that what is being produced is a true and accurate copy of those records. Not sure if that is the affidavit you were referencing. The records custodian need not be an attorney.

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Customer reply replied 1 month ago
Just a little clarification, your last comment regarding the custodian of record's affidavit, do you mean an affidavit concerning the privilege log or affidavit bout the initial production of the record?

That would be an affidavit by the bank servicing company or whoever is actually producing/providing the documents. The privilege log is produced at the same time but the affidavit has more to do with the documents that are provided - confirming they are actual documents and true copies.

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Customer reply replied 1 month ago
This may get a little long winded but, the servicer provided the document during initial disclosures in this case that had been removed to federal court and later remanded back to state court. At the new proposed scheduling order, I requested a unredacted copy of the document and showed the judge the 100 pages that were so heavily redacted you could hardly read it. The defendant's response in the proposed order was that they only redacted my s/s number, last name, loan # etc, which obviously was a lie so when the judge asked for an explaination, they offered to send a privilege log to explain why it was redacted. The only affidavit that was sent by the servicer was when they filed their MSJ and this document wasn't even referenced in the MSJ. No affidavit with the privilege log and the exact same generic "Servicing notes reflecting client/attorney privilege between (servicer) and it's (previous) counsel" for each of the 200+ entries.

It sounds like you may have to file a motion with the state court seeking to compel disclosure or more information to allow you to determine if the privilege is being properly invoked. Also, if the response is that they were just redacting your personal information, they don't need to redact that if providing it to you, they just needed to do so when it was filed in the court; so you should still get access or be able to get access to unreacted versions where that is the explanation and not attorney-client privilege. It sounds like they are overusing the privilege (though obviously I can't know for sure) and you may need the court to intervene. If need be, the court can review the unredacted documents to determine if they are properly redacted. That is what is called "in camera review" and may be something you want to ask the court to do to help with this issue.

Attorney Wendy
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Satisfied Customers: 491
Experience: Member at Keefer & Keefer LLC
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