The U. S. District Court for the Eastern District of Wisconsin recently addressed the importance of privilege logs and updating them in its Oct. 5 decision in Nordock, Inc. v. Systems Inc., in which the court held that the failure to identify withheld documents on a privilege log resulted a waiver of the attorney-client privilege.

In most civil litigation, there is a document request or an interrogatory that requests the disclosure of attorney-client privileged information. In the IP context, the information sought might include opinions on the validity or infringement of a patent, patent claim scope, or trademark; analysis of the prior art; and the like. The typical, nonspecific response to such a request is an objection and the assertion of the privilege, such as: “Defendant objects to this request because it seeks information that is the subject of the attorney-client privilege and/or the work-product doctrine.”

On its face, this type of response, without more, is insufficient. Rule 26(b)(5) of the Federal Rules of Civil Procedure requires that when a party withholds otherwise discoverable information by claiming a privilege, that party must make the privilege claim and then describe the withheld information in sufficient detail to allow the other party to assess the merits of the claim. The rule, however, does not specify what type of information should be provided or the format to be used when providing the information.