In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., No. 1:21-cv-6890 (N.D. Ill. July 15, 2024), Illinois Magistrate Judge Jeffrey T. Gilbert, ruling on several issues between the parties, found that the plaintiff’s metadata-only privilege log was adequate under the parties’ ESI protocol and that, because “Hillrom did not comply with this process for challenging the adequacy of Linet’s privilege log entries…, this dispute is not ripe for resolution.” He also rejected the argument that the plaintiff did “impliedly waived privilege based on Hillrom’s potential spoliation claim”.
Case Discussion and Judge’s Ruling
In this case, the defendant filed a motion to compel certain discovery from the plaintiff. Two of the issues related to whether the plaintiff impliedly waived privilege based on defendant’s potential spoliation claim and whether plaintiff’s metadata-only privilege log was a violation of the ESI Protocol in this case and Rule 26(b)(5)(a)(ii).
Regarding the first issue, the defendant said the plaintiff’s privileged communications are “plainly responsive to the Court’s December 2023 order” and contended that Order required production of the plaintiff’s privileged communications. The defendant also contended production of the plaintiff’s privileged communications with counsel before its retention of Hunton Andrews Kurth, the law firm that represented the plaintiff in this lawsuit when it filed its complaint, was “central to [ ] ‘when Linet’s duty to preserve arose,’ ” and this discovery “will inform the proper remedy for Linet’s ESI destruction …” motion.
Judge Gilbert stated: “As an initial matter, the Court disagrees with Hillrom’s characterization of the Court’s December 2023 Order, which allowed Hillrom to take limited discovery about when Linet’s duty to preserve may have arisen but did not require Linet to produce privileged communications related to that issue. Rather, the Court allowed ‘narrowly tailored’ discovery of ‘when Linet reasonably anticipated litigation,’ including ‘a log of communications between Linet and its law firm from December 2019 to April 2020 (containing the dates, participants in, and the subject matter of the communications).’…The Court rejected Hillrom’s alternative request for ‘ ‘any communications with Hunton that relate to potential claims by Linet against Hillrom’ ‘ noting ‘[m]ost or at least many of the communications between Linet and its then-counsel, Hunton, are likely to be protected by the attorney-client privilege or even the work product doctrine.’…While Linet’s communications with counsel before the execution of Linet’s retention agreement with Hunton may be relevant to when Linet’s duty to preserve arose, Hillrom does not cite any cases authorizing or requiring piercing the attorney client privilege in such circumstances.”
Continuing, he said: “As Linet notes, Hillrom has not filed a motion seeking relief for any alleged spoliation and the Court has not made any finding of spoliation…Hillrom acknowledges this, stating it “reserves full briefing” of the spoliation issue ‘for a Rule 37(e) motion.’” So, he rejected the argument that the plaintiff did “impliedly waived privilege based on Hillrom’s potential spoliation claim”.
Regarding the dispute over the metadata-only privilege log, Judge Gilbert stated: “Linet argues the parties agreed to ‘metadata-only privilege logs as a burden saving measure’ and this entry complies with the agreed ESI Protocol by providing the subject line and information identifying the communication as between Linet and outside counsel…Linet also points out the ESI Protocol provides a process by which Hillrom can request a ‘full Rule 26 privilege log entry’ if it has a good faith belief to assert the communication is not privileged, but that Hillrom did not do so for this exemplar log entry (or, it appears, for any other log entries…Hillrom acknowledges ‘the parties agreed to metadata-only privilege logs,’ but disputes that Linet has complied with the ESI Protocol.”
Continuing, he said: “Under the terms of the agreed ESI Protocol, Linet’s log entries identifying communications between Linet employees and outside counsel with a subject line or file name are permissible and sufficient ‘metadata only’ entries…The Court agrees with Linet that the ESI Protocol does not require a separate description of the redacted subject lines or file names…Linet generally describes the withheld emails between Linet and outside counsel as about requests for legal advice related to an antitrust case assessment…Hillrom’s argument, however, ignores the parties’ agreed ESI Protocol, which expressly contemplates a metadata-only log in lieu of a log under Rule 26(b)(5). Importantly, the ESI Protocol also provides an agreed process for the parties to address good faith requests for a log entry ‘in compliance with Fed. R. Civ. P. 26(b)(5)’ and to dispute privilege claims…Because Hillrom did not comply with this process for challenging the adequacy of Linet’s privilege log entries,…this dispute is not ripe for resolution.” So, he denied the defendant’s motion to compel without prejudice regarding the metadata-only privilege log.
So, what do you think? Should parties agree to metadata-only privilege logs? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman for the original coverage!
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