The Court is very well aware of the fact that, generally speaking, a finding of bad faith is required to strike an entire privilege log. The Court has no direct information that [Equitable] is dealing in bad faith, but the Court draws the inference from a total of five privilege logs on which a sampling showed at least 25 percent of the privilege log being non-privileged [;] the Court infers bad faith from that statistic, especially in view of the known professional competence of the attorneys for [Equitable]. They know what they're doing .... [T]herefore[,] the entire privilege log is stricken and the order is that all the documents listed on the privilege log shall be disclosed.
So here's what we're going to do. [Emerald] is going to select 20 documents, any 20 documents of the existing privilege log. They will be submitted in camera. If 20 percent or more are deemed to be non-privileged, then the Court will therefore find that ... the entire Fourth Amended Privilege Log is tainted. That's 20 percent or more, 20 percent of 20 is four.... I understand that there are good faith differences of opinion .... [However,] considering the intense spotlight on this privilege log issue for the last few months, there cannot be more than three out of 20 that there is a good faith difference of opinion. If more than three are found by the Court to be non-privileged, then the entire privilege log will be stricken and all of the documents will be ordered to be produced.
End of Document.