Failure to Serve Privilege Log by Court’s Deadline Did Not Effect Waiver

Streamline Capital, LLC v. Hartford Cas. Ins. Co., 2005 WL 66898 (S.D.N.Y. Jan. 11, 2005)

Previously, the defendant had sought sanctions for spoliation of evidence, arguing that plaintiff’s two principals (key witnesses in the case) had systematically deleted potentially relevant emails before and during the litigation. At that time, the magistrate judge deferred any decision on sanctions and ordered the two witnesses to consent to the production of pertinent emails still available through their email service companies in order to determine, to the extent possible, the degree of prejudice defendant suffered by virtue of the deletions. See Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004). The court ordered that any recovered emails be delivered to plaintiff’s counsel to review for privilege, and that the balance of the emails be produced to defendant. This most recent opinion addresses defendant’s motion to compel production of several of the recovered emails withheld by plaintiff as privileged.

At the outset, the court rejected the defendant’s argument that any privilege was waived because plaintiff did not serve its privilege log within the time specified by the court’s scheduling order. The court ruled that, although plaintiff produced the log five days late, there was no basis for imposing the harsh remedy of an across-the-board waiver given the expedited nature of the process, the apparently inadvertent reason for the delay, the absence of any prejudice to defendant, plaintiff’s timeliness in providing all of the documents deemed not privileged, and plaintiff’s timeliness in producing the privilege log pertaining to documents retrieved from the other email service company.

The court went on to evaluate each disputed email, and concluded that plaintiff had failed to meet its burden of proof as to several. The court ordered that plaintiff produce some of the disputed emails, and provide additional factual information as to others.