In Cephalon, Inc. v. Johns Hopkins University, No. 3505-VCP (Del. Ch. Aug. 18, 2009) read opinion here, while ruling on two motions to compel, Vice Chancellor Parsons addressed a couple of the most expensive and time consuming segments of discovery: (i) privilege review and the content and detail required in privilege logs for information withheld due to attorney-client privilege or work product immunity; and (ii) the scope of redactions and disclosure of underlying factual information.
Kevin Brady, a highly respected Delaware litigator, provided this synopsis.
In challenging the sufficiency of defendants’ privilege log, plaintiff Cephalon complained that “over 150 documents on [defendant’s] logs do not identify even one attorney as being involved with the document.” The Court noted that “[t]he fact that a written communication does not involve an attorney, however, does not mean the document cannot be privileged. Such a communication, for example, could recite legal advice received from a lawyer or reflect a confidential request made by an officer or other representative of a company for legal advice. In both those instances, the document could very well be privileged.”
After his review of the privilege log, Vice Chancellor Parsons granted in part the motion to compel and ordered the defendants to revise their privilege logs. For every privilege log entry where a document is being withheld on the basis of attorney-client privilege, if the log description contains no reference to an attorney, the Court ordered that the defendants must state, in addition to the basis for withholding (i.e. attorney-client privilege, work product immunity), that the document “contains confidential information made for the purpose of facilitating the rendition of professional legal services to the client or provide a similar basis for the claimed privilege.” Summary descriptions would not be acceptable. In addition, Vice Chancellor Parsons went the extra step and required that “an attorney sign the amended privilege log in accordance with Rule 11.”
Scope of Redactions and Disclosure of Underlying Facts
Another challenging area for practitioners is the decision as to what factual information in a privileged communication must be disclosed. Here Cephalon argued that the privilege does not protect underlying facts from disclosure and so those facts should be disclosed. While the Court agreed with Cephalon that “privilege is limited to confidential communications and does not protect the underlying facts from disclosure. . .” the Court went on to note that not all facts in a privileged document must be produced. “Rather, production may be required if the factual information easily can be segregated from other aspects of a document and produced without disclosing privileged communications.”