If one party in a lawsuit merely identifies documents on a privilege log without detail, does the other party bear the burden of showing that the withheld materials were not privileged, in order get access to those documents? The Fifth Circuit unanimously says no. In EEOC v. BDO USA, LLP, the Fifth Circuit held that records and communications with legal counsel are not automatically protected from disclosure just by virtue of their being identified in a privilege log. 

The case arises out of a gender discrimination charge filed by Hang Bower with the United States Equal Employment Opportunity Commission (“EEOC”) against BDO, a financial services firm. Until she resigned on January 15, 2014, Bower, an Asian-American woman, served as BDO’s Chief Human Resources Officer and was responsible for investigating discrimination complaints. In this role, Bower communicated with both in-house counsel and outside counsel. On July 9, 2014, Bower filed a charge with the EEOC, alleging that BDO subjected her and other female employees to gender discrimination, retaliation, and a hostile work environment. In response to a subpoena from the EEOC, BDO produced some of the information that was requested but withheld 278 documents as attorney-client privileged, according to a privilege log it produced.

On December 10, 2015, the EEOC sought enforcement of the subpoena in federal district court. BDO responded with its own request for a protective order, to enjoin the EEOC from interviewing BDO employees about conversations with BDO’s counsel and to require the EEOC to return documents memorializing those conversations. At a hearing, the magistrate judge granted BDO’s request for a protective order and denied the EEOC’s attempt to enforce the subpoena.  The magistrate judge explained that BDO’s privilege log was sufficient to establish privilege and that there was no need for an in camera review of the documents. The magistrate judge further noted that “anything that comes out of [BDO’s] lawyer’s mouth is legal advice.” On March 21, 2016, the district court affirmed the magistrate’s order, and EEOC appealed.

The Fifth Circuit, finding the magistrate judge’s application of law was incorrect, vacated and remanded the district court’s decision. The Fifth Circuit identified three types of deficiencies in the privilege log: 1) the entries were vague or incomplete; 2) the entries failed to distinguish between legal advice and business advice; and 3) the entries failed to establish that the communications were made in confidence. For these reasons, the Fifth Circuit determined that BDO failed to prove its prima facie case that the documents were privileged and that an in camera review would likely be necessary. The Fifth Circuit held that because the privilege log lacked sufficient detail to determine the applicability of the privilege on its face, “the magistrate judge erred when she placed the burden on EEOC to show that BDO’s withheld communications were not privileged.” The Fifth Circuit further found that the magistrate judge’s definition of the attorney-client privilege was overly broad and remanded the case back to the trial court to consider BDO’s request for a protective order, under the proper legal standard.

The Fifth Circuit’s decision provides helpful guidance for attorneys when preparing a privilege log. Log entries should contain sufficient detail to allow a court to determine whether the underlying documents are protected. The Fifth Circuit suggested that vague descriptions such as “discrimination claim,” “internal investigation,” or “work environment claim” will not suffice. The Fifth Circuit warned against the uncorroborated use of conclusory descriptions of “legal advice” and emphasized that there is no presumption that communications with counsel are privileged simply because they appear on a privilege log.