Summary
The United States District Court for the District of Montana granted Plaintiffs’ motion to compel. The court ordered Succession to provide a privilege log for redacted materials and directed Defendants to submit their joint defense agreement for in camera review, while denying as moot a motion to file a sur-reply.
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Practice areas
Questions Presented
- Whether Succession was required to provide a privilege log for documents or portions of documents withheld or redacted on privilege or protection grounds.
- Whether Defendants' joint defense agreement was categorically privileged or irrelevant and therefore undiscoverable.
- Whether the joint defense agreement should be submitted for in camera review to determine whether any portion was discoverable.
Holdings
- A party that withholds or redacts otherwise discoverable information by claiming privilege or trial-preparation protection must expressly make the claim and provide an adequate privilege log describing the materials sufficiently to permit assessment of the claim. Succession was required to provide a privilege log for the remaining redacted material in its supplemental production.
- A joint defense agreement is not per se privileged merely because it concerns the joint defense or common-interest doctrine; joint defense agreements are generally not privileged when they simply formalize the invocation of that doctrine or set forth the existence of attorney-client relationships.
- The joint defense agreement must be submitted for in camera review so the court can determine whether any portion is relevant and discoverable and can verify the agreement's existence, effective date, and parties.
Key quotations
“When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”
“This principle informs the scope of what protection a JDA may legitimately carry but does not render the agreement itself per se privileged.”
“In camera review is the appropriate remedy here—and indeed, the one that both parties apparently agree to.”
Factual background
Succession produced approximately 14,000 pages of documents, some of which were redacted or withheld, but did not provide a privilege log. After Plaintiffs repeatedly requested a log, Succession reproduced some documents in full but left other redactions unaddressed. Plaintiffs also sought Defendants' joint defense agreement, which Defendants argued was privileged and irrelevant.
Procedural history
Plaintiffs filed a motion to compel after Succession produced approximately 14,000 pages containing redactions or withheld materials without a privilege log. Defendants opposed the motion, and the parties apparently agreed that the joint defense agreement could be submitted for in camera review. The court granted the motion to compel, ordered production of a privilege log and submission of the joint defense agreement within fourteen days, and denied a motion to file a sur-reply as moot.