In CareFirst of Md., Inc. v. Johnson & Johnson, No. 2:23-cv-629 (E.D. Va. Jan. 14, 2026), Virginia District Judge Jamar K. Walker ruled that certain “uses of J&J’s privilege log may be admissible subject to CareFirst laying a proper foundation as to the meaning of the metadata fields”, while also ruling that other “uses of the privilege log and/or metadata are inadmissible”.

Case Discussion and Judge’s Ruling

In this case, the dispute arose from CareFirst’s effort to use Johnson & Johnson’s (J&J) privilege log entries, email subject lines, and document metadata to establish that J&J knew about certain Momenta manufacturing patents at the time of acquisition and intended to use them anticompetitively. While CareFirst framed this evidence as merely establishing “timeline” and “knowledge,” Judge Walker concluded that the probative force of CareFirst’s argument depended on impermissible inferences about the substance of privileged communications.

Judge Walker began by recognizing that privilege logs are not categorically inadmissible. Citing Fourth Circuit authority, he acknowledged that “privilege logs can be admissible evidence,” particularly where they are used to establish “the fact or timing of a communication.” But Judge Walker immediately drew a critical distinction: admissibility ends where a party’s theory of relevance requires a jury to infer what privileged communications must have discussed. As he explained, “[a] negative inference should not be drawn from the proper invocation of the attorney-client privilege”.

Continuing, Judge Walker reiterated that while the existence of attorney-client communications is not itself privileged, juries may not be invited to draw adverse conclusions about the content of those communications. He emphasized that this rule applies with equal force in the context of privilege logs. Allowing litigants to suggest what privileged communications “must have been about,” Judge Walker reasoned, would directly contravene the purpose of the privilege, which is “to encourage full and frank communication between attorneys and their clients”.

Importantly, Judge Walker barred CareFirst from presenting privilege log entries or metadata “disconnected from their families,” warning that doing so would be “likely to substantially mislead the jury.” He noted that CareFirst had previously suggested that certain creation dates reflected when J&J possessed documents, when in reality the documents were merely attachments to later emails. Such presentations, Judge Walker held, violated Federal Rule of Evidence 403 because their probative value was outweighed by the risk of confusion and unfair prejudice.

Discussing one example, where CareFirst sought to juxtapose a standalone PDF of a Momenta patent with privilege log entries describing emails bearing subject lines related to biosimilar competition, Judge Walker rejected this approach outright, explaining that it required jurors to infer both that the subject lines accurately reflected the content of the emails and that the content related to the patent. “That is a semantic difference, not a substantive one,” Judge Walker wrote, concluding that an inference about the “subject” of a privileged communication is necessarily an inference about its contents – and therefore impermissible.

Judge Walker also prohibited CareFirst from linking different sets of emails based solely on subject lines such as “Stelara Competition Update” and “Project Vigor (New Transaction).” Without admissible evidence connecting the participants or content of those communications, Judge Walker held that CareFirst’s theory again depended on “negative inferences arising from J&J’s assertion of attorney-client privilege,” which could not be presented to the jury.

Ultimately, Judge Walker granted J&J’s motions in limine in part, stating:

“[T]he Court finds the following uses of J&J’s privilege log may be admissible subject to CareFirst laying a proper foundation as to the meaning of the metadata fields: (1) use of the “Created/Sent Date” metadata field for the purpose of showing the fact of a document’s creation or download, if presented in conjunction with the FamilyID field to provide the context of whether the document was part of a family; and (2) use of the “Created/Sent Date” metadata field for emails as well as the custodian, sender, and recipient metadata fields to show the fact of communication. CareFirst’s characterization of deposition testimony based on the facts in evidence and absent an impermissible negative inference about the content of privileged material is also admissible… The Court finds the following uses of the privilege log and/or metadata are inadmissible: (1) use of any privilege log entries to demonstrate that particular entries are related based on the “Created/Sent Date” of the entries and/or the subject lines of emails; (2) invocations of privilege during deposition.”

So, what do you think? Are you surprised that the Court ruled that “J&J’s privilege log may be admissible”, at least in part? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman, who covered this case here!

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