Indiana Rule of Trial Procedure 26(B)(1) establishes that privileged information may not be obtained through discovery. Two issues that remain unsettled in Indiana civil proceedings are whether a claim of privilege must be supported by a privilege log and, when a privilege log is used, what information should be included in the log. The Indiana Court of Appeals declined to answer these questions in the recent case of Brown v. Katz, 868 N.E.2d 1159 (Ind.Ct.App. 2007). The lack of guidance, either in Indiana court rules or case law, sounds a cautionary alarm to Indiana trial practitioners faced with asserting claims of privilege in response to discovery requests.
The starting point for this analysis is Federal Rule of Civil Procedure 26(b)(5). That rule provides that a party must assert a privilege expressly and shall describe the nature of the documents or things not produced in a manner that “will enable other parties to assess the applicability of the privilege or protection.” In federal practice, this is typically accomplished through a privilege log. A number of federal cases have identified the information that a party should include in a privilege log when attempting to establish a claim of privilege. For example, in Jones v. Hamilton County Sheriff’s Dep’t, No. 02-0808-C-H/K, 2003 WL 21383332 (S.D. Ind. June 12, 2003), Magistrate Judge Baker, speaking for the Southern District of Indiana, stated:
Discovery opponents [must] produce a privilege log listing each separate document they claim to be beyond discovery, described in the following separate categories. For each document, the log should identify the date, the author and all recipients, along with their capacities. The log should also describe the document’s subject matter, purpose for its production, and a specific explanation of why the document is privileged or immune from discovery. These categories, especially this last category, must be sufficiently detailed to allow the court to determine whether the discovery opponent has discharged its burden of establishing the requirements expounded upon the foregoing discussion.
The Indiana Rules of Trial Procedure do not adopt the language of Fed. R. Civ. P. 26(b)(5) and do not mandate the use of privilege logs. Nevertheless, privilege logs are commonly used by Indiana litigants to establish a privilege. Although the Indiana Discovery Rules and case law do not provide a clear statement about the expected use of the privilege log, Indiana courts have provided important guidance regarding the procedure a party must follow when asserting a privilege. First, a claim of privilege should be made on a document-by-document basis and it is generally insufficient to assert a blanket claim of privilege. Second, absent an articulation of specific reasons why the documents are privileged, the privilege, if any, will be waived. Third, in cases involving the production of documents in which the privilege is not readily apparent, the proponent of a privilege may submit the documents to the court in camera. Documents submitted for in camera inspection should itemize each document, provide a summary of its contents, and state a justification for withholding the document. See, Burr v. United Farm Bureau Mut. Ins. Co., 560 N.E.2d 1250 (Ind. Ct. App. 1990) (involving work product privilege). Further, in Hartford Fin. Servs. Group, Inc. v. Lake County Park and Recreation Bd., 717 N.E.2d 1232 (Ind. Ct. App. 1999) (involving attorney-client privilege), the court noted that the proponent of a privilege had provided the trial court with a privilege log that identified the author, recipients, type of document, and specific privilege asserted for each document.
In Brown v. Katz, the Indiana Court of Appeals correctly observed that Indiana court rules and the Indiana Code do not address the content requirements for stating an adequate privilege log. On this point the court stated: “While it is clear that a party asserting privilege bears the burden of establishing the validity of its assertion, there is a lack of information concerning what constitutes an adequate privilege log in Indiana.” The court next considered and then limited the Hartford decision to the facts of that case. This is significant as Chief Judge Baker wrote the majority opinion in both the Hartford and Brown cases. Although the court’s reason for limiting Hartford was sound, the Brown court missed an excellent opportunity to instruct the Indiana bar on exactly what should be included in a privilege log. Despite the court’s decision not to clarify these issues, the Brown case is helpful to the extent it affirms that the privilege log is an appropriate vehicle for establishing a privilege in Indiana civil actions.
At some point it will be helpful if the Indiana Supreme Court clarifies by court rule what information the court expects Indiana litigants to include in a privilege log. Until this occurs, the proponent of a privilege should err on the side of including more, rather than less, information on the privilege log in order to avoid a finding of waiver. Accordingly, it is recommended that Indiana litigants use the privilege log when information or documents are withheld from discovery production on grounds of privilege, and that the privilege log should include, at a minimum, the information identified in the Jones case. These federal guidelines should provide an adequate safe harbor to Indiana litigants until clear instructions are provided by the Indiana courts.
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Stephen Arthur is a partner with Harrison & Moberly, LLP (
, in Indianapolis, and concentrating his practice in federal and state business and tort litigation. He is the author of Indiana Civil Trial Practice, published by West Publishing, and co-author of Professor Harvey’s Indiana Rules of
. The opinions and analysis expressed in this column are those of the author.