The case of the day, Chevron Corp. v. Salazar (S.D.N.Y. 2011), is a minor discovery dispute in the New York branch of the Lago Agrio litigation that illustrates the war of attrition I suggested in Monday’s post. The case involves the adequacy of Chevron’s privilege log. The magistrate judge reviewed the supposedly privileged documents at issue in camera.

The case illustrates the (unfortunately common) misuse of claims of privilege in US civil litigation. For example, Chevron claimed privilege for a set of documents and gave the following description:

DOCUMENTS assembled, obtained, gathered, or compiled as part of a fact investigation at the direction of counsel and in anticipation of litigation or in preparation for trial, the assembling, obtaining, gathering, or compiling of which reflect the thoughts, impressions, legal theories, or litigation strategies of counsel regarding discovery proceedings pursuant to 28 U.S.C. § 1782 seeking discovery related to the LAGO AGRIO DISPUTES.

But in fact, said the magistrate judge, the documents “are all press releases and news stories related to the Lago Agrio litigation.” The defendants “could not have guessed this, however, based on Chevron’s categorical description of the documents.”

I don’t give Chevron too much blame for this. I think mistakes like this are generally a result of the way that document review happens in large cases—and I am speaking from experience here. A bunch of young associates get the unenviable job of “coding” documents for responsiveness and privilege. This isn’t what they signed up for when they went to law school. The consequences of under-designating documents as privileged are perceived to be much more serious than the consequences of over-designating, and this bias comes to light only when the judge undertakes an in camera review. Likewise, it is not uncommon to see privilege logs that, like Chevron’s in this case, don’t really provide a way to assess the claim of privilege intelligently.

For the most part, my sense is that the New York proceedings have played out on Chevron’s chosen field of battle, but today’s decision is the second in recent days where Chevron has faltered. The first, of course, was much more significant—the Second Circuit’s decision vacating Judge Kaplan’s preliminary injunction. But today’s decision must sting a little, too:

Distressingly, Chevron has taken a view of its own discovery responsibilities sharply different from the obligations it seeks to impose on the defendants and on non-parties. In a motion to compel production of documents in the possession of defendants’ counsel, Chevron was highly critical of privilege log descriptions that turn out to have been far more detailed than Chevron’s own. (Chevron Corporation’s Motion to Compel Andrew Woods and Laura Garr to Produce Individual Documents Listed on Their Privilege Logs at 1 & n .2, 4). Furthermore, Chevron withheld the public relations documents included in its privilege logs notwithstanding the fact that I had just issued an order indicating that similar documents could not be withheld by defendants’ attorneys. And, although I have focused here on the Category 260 Documents, some documents in other categories appear not to have been properly withheld because they are neither privileged nor subject to the work product doctrine.