Claiming Privilege In Discovery

Published in Association of Corporate Counsel Docket (ACC)

What happens when discovery requests call for information that is protected by privilege? This issue has been the subject of increasing litigation in recent years. Accordingly, it is important for both in-house and outside counsel to understand their obligations.

Fed.R.Civ.P. 26(b)(5)(A) states as follows:

When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

Many states have adopted similar rules. Not so long ago, it was common to receive a discovery response that simply stated: "Objection. Calls for privileged information." Such a response is clearly unacceptable. The use of the word "expressly" in the rule contemplates that specific information will be provided. A party cannot simply determine by itself that material is exempt for production and discovery because of a privilege and fail to inform the other party...