Fifth Circuit Confirms That Documents Listed On A Privilege Log Are Not Per-Se Privileged

If one party in a lawsuit merely identifies documents on a privilege log without detail, does the other party bear the burden of showing that the withheld materials were not privileged, in order get access to those documents? The Fifth Circuit unanimously says no. In EEOC v. BDO USA, LLP, the Fifth Circuit held that records and communications with legal counsel are not automatically protected from disclosure just by virtue of their being identified in a privilege log. 

The case arises out of a gender discrimination charge filed by Hang Bower with the United States Equal Employment Opportunity Commission ("EEOC") against BDO, a financial services firm. Until she resigned on January 15, 2014, Bower, an Asian-American woman, served as BDO's Chief Human Resources Officer and was responsible for investigating discrimination complaints. In this role, Bower communicated with both in-house counsel and outside counsel. On July 9, 2014, Bower filed a charge with the EEOC,