The U.S. Court of Appeals for the Fifth Circuit has ruled that a “privilege log” submitted to the Equal Employment Opportunity Commission (EEOC) in response to an agency subpoena was inadequate in supporting a company’s refusal to turn over certain documents to the agency. A privilege log typically is produced during an agency investigation or in the course of litigation and describes documents the party is withholding from an opposing party on grounds that the information contained therein is protected attorney-client communications or attorney work product.
In reversing a federal trial court, the Fifth Circuit in EEOC v. BDO USA, LLP (5th Cir. May 4, 2017), found that the privilege log entries lacked sufficient detail to determine whether the entire document or just portions of it were protected, failed to distinguish between legal and business advice, and failed to establish that communications were made in confidence and kept confidential. Accordingly, the Fifth Circuit sent the case back down to the trial court to re-examine the log and determine whether the documents were properly withheld.
The BDO ruling provides rare judicial guidance on what a proper privilege log should contain in the context of an EEOC investigation or litigation generally. It also serves as a helpful reminder that when withholding documents based on a claim of privilege, it is important to distinguish between legal and business advice, especially in a case such as this where the communications are between in-house counsel and an HR director who investigates claims of discrimination on a regular basis.
A copy of the decision in EEOC v. BDO is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.