Plaintiff Ordered to Produce Metadata for Privilege Log
In Companion Property and Casualty Insurance Company v. U.S. Bank N.A., Case No. 15-01300 (D. S.C., Nov. 3, 2016), Plaintiff entered into a fronted insurance program with two reinsurance companies, Redwood and Dallas, whereby Redwood and Dallas assumed the risk but Plaintiff received a fee in exchange for their use of its name and paper. Redwood and Dallas’ obligations to Plaintiff were secured by trusts established for Plaintiff’s benefit. Defendant became trustee as to the trusts. Over the course of a year, the trusts substantially decreased in value, and Plaintiff sued Defendant, claiming breach of contract and breach of fiduciary duty, as well as violations of the South Carolina Unfair Trade Practice Act.
During discovery, Plaintiff submitted a privilege log of redacted and withheld documents, and Defendant filed a Motion to Compel, alleging that Plaintiff was “abusing the attorney-client privilege and work-product doctrine” by withholding nearly 10,000 documents and redacting nearly 3,000 documents. Plaintiff replied that everything it submitted was as agreed, for the parties had concurred in submission of categorical privilege logs; Defendant then changed its requested relief to include, among other things, a request to compel a metadata log of each withheld document, including dates of communications, date created, document custodian, to/from/cc information, and subject lines for emails. Plaintiff agreed to produce a metadata log, but Defendant qualified that it wanted the court to review certain communications to determine that they’d been properly withheld.
The court found that it has discretion to limit a party’s burden in preparing a privilege log, and that categorical logging is often permitted when document-by-document logging would be unduly burdensome or when more detail would not be of any “material benefit” to the other party in assessing a claim of privilege. Defendant pointed to Plaintiff’s Category 36 as an example of the log’s deficiencies, and the court noted that the category contained 646 documents that spanned three years, naming 72 different people. The court found that the privilege log was inadequate, as it did not permit either Defendant or the court to determine whether any privilege applied. The court ordered production of a metadata log as well as affidavits in support and a list showing what “litigations” were anticipated when the work product was created.