Privilege Logs in Contract Disputes Act Litigation: An Equal Obligation for Both Parties

In this matter, the contractor filed a motion to compel following its receipt from the DOL of a log that had claimed legal privilege associated with 1,300 responsive documents. The contractor complained that the privilege log did not adequately identify the documents listed or the bases for the privilege asserted. In its order, the CBCA found the DOL’s privilege log deficient for two reasons. First, the Board ruled that the “subject” column of the privilege log provided only generic descriptions that could not enable any meaningful privilege evaluation. For example, in instances where the DOL asserted the attorney-client and deliberative process privileges, it sometime described associated documents as broadly as “FW: Signed Agreement.” The Board ruled that no recipient of this description could make an adequate determination of or challenge to privilege. Second, the CBCA criticized the DOL in the instances where it failed to identify “any author and, in a few instances, any recipients of the document being claimed as privileged.” Rather than require the DOL to immediately produce all of the documents on its privilege log as the Appellant had asked, the Board instead allowed the DOL to revise its log to correct the deficiencies.

Because the Boards deem the Federal Rules of Evidence and Civil Procedure as advisory rather than mandatory, we pay close attention to Board decisions on discovery issues. To our knowledge, the Boards have issued very few recent decisions concerning the adequacy of privilege logs. This case carries import because it clarifies that the CBCA seems inclined to follow the Federal Rule of Civil Procedure requirements and case law governing privilege log adequacy. It also informs that the Board will require agencies to live up to the same rules that apply to contractors, even when agencies invoke doctrine unique to the government such as the deliberative process privilege.