Background
This dispute arose from a criminal investigation in Peru alleging that an attorney recruited clients for personal injury litigation against The Renco Group Inc. and its subsidiary. Renco sought discovery from the attorney under Section one thousand seven hundred eighty-two of Title twenty-eight of the United States Code. The law firms representing the plaintiffs intervened and moved for protective orders, claiming attorney-client privilege and work product protection. The district court denied these motions, finding the assertions insufficiently established.
The court’s reasoning
The Eleventh Circuit reviewed the denial of the protective order for abuse of discretion. The court first addressed a suggestion of mootness, concluding that the appeal remained live because the court could order the return or destruction of documents or enjoin their future use. On the merits, the court held that the law firms failed to meet their burden of proof. The privilege log submitted by the firms improperly lumped documents together, contained undated entries, and included typographical errors. The court emphasized that blanket assertions are unacceptable and that the burden rests on the asserting party to provide a document-by-document explanation. The district court was not required to conduct an in camera review or hold a hearing when the initial showing was insufficient.
The law in this Circuit requires a party asserting privilege or protection to do so on a document-by-document basis.
In re Grand Jury Subpoena, 831 F.2d 225, 227 (11th Cir. 1987)
What it means going forward
The ruling reinforces the strict evidentiary burden on parties claiming privilege in discovery disputes, requiring precise, document-specific logs rather than generalized claims.