Goulet v. The University of Mississippi
ORDER directing Defendant to amend its privilege log. Signed by Magistrate Judge Jane M. Virden on 01/19/2023. (nih)
Case: 3:22-cv-00089-NBB-JMV Doc #: 32 Filed: 01/19/23 1 of 2 PageID #: 146
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 3:22-cv-35-NBB-JMV
THE UNIVERSITY OF MISSISSIPPI
This matter is before the court, sua sponte, for the purpose of ordering amendment be
made by the defendant to the purported privilege log (which is attached as an exhibit by Plaintiff
to her pending Motion to Compel ), as is discussed below.
It is well established that a party asserting privilege (work-product and/or attorney-client)
has the burden of establishing that privilege. See E.E.O.C. v. BDO USA, L.L.P., 876 F.3d 690,
695 (5th Cir. 2017); In re Santa Fe Intern. Corp., 272 F.3d 705, 710 (5th Cir. 2001).
Fundamental to that exercise, and as is specifically required by the Rule 26(b)(5) of the Federal
Rules of Civil Procedure, a party withholding information as privileged must: “(i) expressly
make the claim” of privilege; and “(ii) describe the nature” of the withheld information in a way
that “will enable other parties to assess the claim.” Further, Uniform Local Civil Rule 26(e)
requires a party claiming privilege to submit certain specified information in the log, as follows:
(e) Privilege Logs. A party withholding information claimed privileged or otherwise
protected must submit a privilege log that contains at least the following information:
name of the document, electronically stored information, or tangible thing; description of
the document, electronically stored information, or tangible thing, which description must
include each requisite element of the privilege or protection asserted; date; author(s);
recipient(s); and nature of the privilege. To withhold materials without such notices
subjects the withholding party to sanctions under FED.R.CIV.P. 37 and may be viewed
as a waiver of the privilege or protection.
Case: 3:22-cv-00089-NBB-JMV Doc #: 32 Filed: 01/19/23 2 of 2 PageID #: 147
District courts in this circuit have also recognized this duty. Vertex Aerospace, LLC v. Womble
Bond Dickinson, LLP, Civ. Action No. 3:09-cv-00704-HTW-LGI, 2022 WL 1830715, at *4
(S.D. Miss. Apr. 26, 2022) (citing Estate of Manship v. United States, 232 F.R.D. 552, 561
(M.D. La. 2005) (“Even if describing the protected materials in a log may be difficult to do
without revealing the confidential nature of the documents, it is nevertheless the obligation of the
[withholding party] under [Federal Rule of Civil Procedure] 26(b)(5).”).
In as much as even a cursory review of the purported privilege log at issue in the instant
case reveals it is woefully lacking in the specifics required under these rules, it must be amended.
Accordingly, to the extent Defendant seeks to stand on any of its claims of privilege asserted
heretofore, it is required to (1) within seven (7) business days of this order, amend its privilege
log to identify all of the descriptive information required of it by law to be disclosed; (2) confer
with Plaintiff within seven (7) business days of such amendment to determine whether, in light
of the revised privilege log, there are any documents described therein that are no longer
contended by Plaintiff to be subject to the motion to compel; and (3) then Plaintiff will have an
additional seven (7) business days in which to amend its reply in support of its motion to compel
so as to more particularly address the claims of privilege made in the revised log.
Additionally, given the court’s order here, it is necessary to extend the outstanding
discovery and dispositive motions deadlines. The court will do so by separate order, which the
parties may receive notice of on the docket in this cause.
SO ORDERED, this the 19th day of January, 2023.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
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