Rule 26(b)(5)(A) states as follows: “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed––and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A). In other words, “[a] party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection.” Fed.R.Civ.P. 26 advisory committee notes (1993). “The party must also provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.” Fed.R.Civ.P. 26 advisory committee notes (1993).

“The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories. A party can seek relief through a protective order under subdivision (c) if compliance with the requirement for providing this information would be an unreasonable burden.” Fed.R.Civ.P. 26 advisory committee notes (1993).

Essentially, the parties agree that communications involving in-house or outside counsel created after the filing of plaintiff's original Complaint need not be listed on a privilege log. For practical reasons, there is some support for this approach in case law. For example, in Grider v. Keystone Health Plant Central, Inc., 580 F.3d 119, 139 (3d Cir. 2009), the Third Circuit stated that “a rule requiring creation of an ongoing log of all post-complaint privileged communications would have a chilling effect on the attorney-client relationship” and concluded that “a privilege log may not be required for communications with counsel after the filing of a law suit.” Id. at 139 n.22. See also U.S. v. Bouchard Transp., 2010 WL 1529248, at 2 (E.D.N.Y. 2010) (noting that “privilege logs are commonly limited to documents created before the date litigation was initiated”); Ryan Inv. Corp. v. Pedregal de Cabo San Lucas, 2009 WL 5114077, at 3 (N.D. Cal. 2009) (stating that “counsel's communications with the client and work product developed once the litigation commences are presumptively privileged and need not be included on any privilege log”). But see Horton v. U.S., 204 F.R.D. 670 (D. Colo. 2009) (stating that “common sense dictates that even post-filing correspondence and materials exchanged between lawyer and client must be listed on the privilege log”). Therefore, because the parties have agreed and their agreement is likely to streamline the litigation to a certain degree, communications involving in-house or outside counsel created after the filing of plaintiff's original Complaint need not be listed on a privilege log.

*2 The disagreement raised by the parties in their Joint Motion is about communications with counsel that were created before the filing of plaintiff's original Complaint. Plaintiff agrees to exempt from the privilege log requirement all communications with outside counsel before the filing of the original complaint. However, plaintiff argues that any communications with in-house counsel that were created prior to the filing of the original Complaint should not be exempt from the privilege log requirement. Essentially, plaintiff reasons that this particular set of documents is more likely to include non-privileged or “mixed communications” that contain both privileged and non-privileged information. If Sempra is not required to include this set of documents on a privilege log, plaintiff argues that it would be deprived of any ability to challenge this “frequently disputed issue.” [Doc. No. 137-1, at p. 5-6.] Plaintiff has also represented that he “has reason to believe that in-house counsel played a role in the facts underlying [his] malicious prosecution claim.” [Doc. No. 137-1, at p. 6.] In fact, Sempra identified a number of in-house attorneys in response to interrogatories seeking information “regarding persons with knowledge of the facts at issue in plaintiff's Second Amended Complaint.” [Doc. No. 137-1, at p. 6.][1]

Sempra, on the other hand, argues that plaintiff's proposal is “one-sided” and unfair, because plaintiff has no in-house counsel. If the Court agrees to accept plaintiff's proposed paragraph 28, Sempra believes that plaintiff “would not have to log any communications at all, but Sempra would have to log a significant number of communications” since the parties have been engaged in litigation in Mexico since 2006, and Sempra's in-house counsel has advised the company on such litigation since that time.” [Doc. No. 137-2, at p. 2.] In addition, Sempra contends that plaintiff's proposal should be rejected because “the law makes no distinction between in-house and outside counsel with respect to attorney-client privilege,” and, in any event, “mixed communications” are privileged in their entirety even if they include unprivileged material. [Doc. No. 137-2, at p. 4-6.] Sempra's proposal is that neither party should be required to produce a privilege log. [Doc. No. 137-2, at p. 4-5.] However, to address plaintiff's concern, Sempra has offered to include on a privilege log any arguably “mixed communications” that were generated pre-litigation so that plaintiff can challenge the redacted portions if he believes the privilege has been improperly asserted. [Doc. No. 137-2, at p. 6.] Alternatively, Sempra argues that the Court should require both parties to log all communications with inside and outside counsel that were created prior to the date plaintiff's initial Complaint was filed. [Doc. No. 137-2, at p. 6-7.]

Unlike the privilege log exception commonly allowed for communications between client and counsel created after the filing of a lawsuit, there is no similar consensus for such an exception to be applied to pre-complaint communications. Rather, “[v]ery few decisions ... allow parties to unilaterally dispense with pre-complaint logging, at least of certain communications” as this “position is inconsistent with Rule 26 and the case Law.” Teledyne Instruments, Inc. v. Cairns, 2013 WL 5781274, at 15 (M.D. Fla. 2013). In some cases, courts have allowed “categorical privilege logging” instead of “document by document privilege logging” when there is a “voluminous” number of privileged documents and a substantiated claim of undue burden. Id. at 15-16. See, e.g., Imperial Corp. of America v. Durkin, 174 F.R.D. 475, 477-479 (S.D. Cal. 1997). Here, Sempra does argue, without evidentiary support, that “it would impose a heavy burden on Sempra to log all privilege communications with in-house counsel made prior to the filing of this case.” [Doc. No. 137, at p. 4; Doc. No. 137-2, at p. 2.] Thus far, however, there is nothing to indicate that Sempra would be unduly burdened if it is required to prepare a privilege log.

*3 Based on the foregoing, the Court rejects the drafts submitted by both parties for paragraph 28 of the parties' Proposed ESI Order. Instead, the Court will enter the parties' Proposed ESI Order which reads as follows at paragraph 28:

IT IS SO ORDERED.

Plaintiff's proposed paragraph 28 also includes language purporting to exempt from the privilege log requirement all communications created after the original Complaint was filed that are between outside counsel and a party's agents or employees “as well as any individuals with whom the Party had, at the time of the communication, a common interest or joint defense or prosecution agreement.” [Doc. No. 137, at p. 4.] Sempra disagrees with plaintiff's purported attempt to “carv[e] out an exemption for communications involving his ‘agents' ” as Sempra believes plaintiff's only “agent” is in federal custody on conspiracy and corruption-related charges. [Doc. No. 137-2, at p. 3.] At this time, it is unnecessary for the Court to take any position as to whether any communications between counsel and an “agent” or other third party could legitimately be withheld as privileged.