Privilege Log Deficiencies Waive § 1782 Privilege Claims Absent Document-by-Document Support

Introduction

The Renco Group Inc. and its subsidiary The Doe Run Resources Corporation (collectively, “Renco”) pursued discovery under 28 U.S.C. § 1782 in the Southern District of Florida from Victor Careaga, a former attorney associated with the plaintiff-side firms Halpern, LLC (“Halpern”) and Rodriguez Tramont & Nuñez, P.A. and Napoli Shkolnik, PLLC.

Renco sought materials for use in a Peruvian criminal investigation it had initiated, alleging Careaga engaged in document falsification tied to recruitment of Peruvian plaintiffs in U.S. toxic tort suits pending in the Eastern District of Missouri: A.O.A. v. Rennert (Reid) and J.Y.C.C. v. DRRC (Collins).

Halpern intervened in the § 1782 action and sought a protective order, asserting attorney-client privilege and work product over categories of documents listed on a “Careaga Log.” The magistrate judge and district court rejected the privilege/protection claims as insufficiently supported. Halpern appealed.

Summary of the Opinion

The Eleventh Circuit affirmed. It held:

The appeal was not moot despite production of the documents, because the court could still grant meaningful relief (e.g., ordering return/destruction or enjoining use of information), and Renco’s voluntary assurance of future destruction did not moot the case.
The district court did not abuse its discretion in denying Halpern’s protective order where Halpern failed to meet its burden to establish privilege/work product on a document-by-document basis, relying instead on deficient, lumped, vague, and internally inconsistent privilege-log entries.
The court was not required to hold a hearing, conduct in camera review, or permit amendment of the log—particularly where Halpern never sought leave to amend and was warned the log was inadequate.

Analysis

Precedents Cited

1) Mootness and “Meaningful Relief” After Disclosure

Sheely v. MRI Radiology Network, P.A. and Toriano v. Supervisor of Elections: reaffirmed that a case is moot only when no live controversy remains and the court cannot provide meaningful relief.
Church of Scientology of Cal. v. United States (as applied through Eleventh Circuit authority cited in Rothe v. Aballí and other cases): supports the principle that post-disclosure remedies like return/destruction can still be meaningful.
United States v. Askins & Miller Orthopaedics, P.A.: voluntary cessation requires more than a private assurance; absent binding commitments, a case generally remains live.
F.T.C. v. Gibson Prods. of San Antonio, Inc. (and Fifth Circuit support it cited): meaningful relief may include limiting future use of improperly obtained information, not just physical return/destruction.
Bonner v. City of Prichard: explains why pre-October 1, 1981 Fifth Circuit decisions are binding in the Eleventh Circuit, strengthening reliance on Fifth Circuit mootness/discovery doctrines referenced in the opinion.

Influence on the court’s decision: These authorities allowed the panel to reject the suggestion of mootness as a strategic exit ramp, emphasizing that appellate courts retain power to craft effective remedies even after production.

2) Burden and Method of Asserting Attorney-Client Privilege

Drummond Co., Inc. v. Conrad & Scherer, LLP and In re Grand Jury Investigation: defined privilege as protecting confidential attorney-client communications made to secure legal advice.
Cox v. Adm'r, U.S. Steel & Carnegie (citing In re Von Bulow): emphasized privilege “belongs solely to the client” and only the client may waive it.
In re Grand Jury Subpoena: established the Eleventh Circuit’s requirement that privilege be supported on a document-by-document basis, rejecting “blanket assertions.”
Drummond Co., Inc. v. Terrance P. Collingsworth, Conrad & Scherer, LLP and Johnson v. Gross: reinforced the document-by-document approach and the insufficiency of conclusory privilege claims.
In re Grand Jury Proceedings in Matter of Freeman: placed the burden on the proponent to prove privilege by a preponderance of the evidence.

Influence on the court’s decision: The panel treated Halpern’s privilege log defects (lumping hundreds of pages into single entries; vague, repetitive boilerplate; missing/absurd dates; typographical errors) as a failure to satisfy the foundational requirement that the court and opponent be able to assess privilege claim-by-claim.

3) Work Product Scope and “Primary Motivating Purpose”

Drummond Co., Inc. v. Conrad & Scherer, LLP and F ED. R CIV. P. 26(b)(3)(A): work product extends to materials prepared by counsel “with an eye toward litigation.”
United States v. Davis: articulated the “primary motivating purpose” test for work product.
United States v. Nobles: confirmed work product can apply to certain third-party materials, but only when the doctrine’s purpose is satisfied.
Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co. and Binks Mfg. Co. v. Nat'l Presto Indus., Inc.: warned that the mere possibility of litigation does not transform ordinary records into work product.
United States v. Adlman: denied work product protection where documents would have been created in similar form regardless of litigation.

Influence on the court’s decision: The panel endorsed the magistrate judge’s targeted finding that travel receipts, expense reports, and reimbursement checks—generated by vendors and reflecting routine transactions tied to recruitment—were ordinary business records, not litigation-driven work product.

4) Discretion in Discovery and Protective Orders

McCarthy v. Barnett Bank of Polk Cnty. and Chic. Trib. Co. v. Bridgestone/Firestone, Inc.: defined the abuse-of-discretion framework for discovery rulings (wrong legal standard, improper procedure, clearly erroneous facts).
Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc.: applied the same deferential discovery review in the § 1782 context.
United Kingdom v. United States (quoting Cox v. Adm'r, U.S. Steel & Carnegie): discovery orders are reversed only for abuse of discretion causing substantial harm.
United States v. Zolin: recognized in camera review is discretionary and typically follows an adequate threshold showing.

Legal Reasoning

Jurisdiction/mootness first: The court rejected mootness because (a) return/destruction and (b) injunctive limits on future use remain available remedies, and because Renco’s “intends to destroy” representation was not a binding, completed act and did not satisfy voluntary cessation standards.
Halpern bore the burden and did not meet it: Under F ED. R. CIV. P. 26(b)(5)(A)(i)-(ii) and circuit precedent, Halpern needed specific, document-level support. Instead, Halpern relied on an inadequate log with lumped entries (including a 129-page entry), vague descriptions, missing/incorrect dates (including “June 29, 1905”), and boilerplate objections. The court treated these defects as fatal to meaningful review.
No duty for the court to “fix” a deficient log: The panel rejected the notion that a court must look past or repair the proponent’s defects, emphasizing that doing so would invert the burden and be untenable in modern large-scale discovery.
Even on partial merits, key items were not work product: For at least twelve log entries, the court agreed they were routine business/travel/expense materials from third parties, not created primarily to aid litigation.
No entitlement to further process: The court read In re Grand Jury Subpoena as requiring a hearing or in camera review only after the party makes a document-by-document showing. It also found no abuse in denying amendment where Halpern never sought leave and persisted with the same log despite explicit warnings of inadequacy.

Impact

Privilege-log rigor in § 1782 proceedings: The decision reinforces that § 1782 discovery disputes are not a relaxed forum for privilege assertions. Intervenors resisting § 1782 subpoenas must satisfy the same evidentiary and logging standards as in domestic discovery.
Courts need not undertake burdensome salvage efforts: The opinion discourages “privilege by spreadsheet” tactics—overbroad, lumped logs that force judges to guess. It signals that courts may deny protection outright when logs make meaningful review impracticable.
Limits on using “voluntary destruction” to avoid review: Parties cannot readily moot appellate review of contested production by promising future destruction, particularly where downstream use of information remains a live issue.
Recruitment-related financial records are vulnerable: Firms should expect that receipts, reimbursements, and similar vendor records—especially tied to recruitment—will often be treated as ordinary business records absent a strong showing of litigation-driven purpose and attorney mental impressions.
Forum-shopping concerns acknowledged but not outcome-determinative: While the opinion notes the structural risk that § 1782 can be used to sidestep discovery limits elsewhere, it treats that risk as separate from (and not a substitute for) properly supported privilege claims.

Complex Concepts Simplified

28 U.S.C. § 1782: A federal statute that can allow U.S. discovery (subpoenas, documents, testimony) for use in a proceeding abroad. It can be powerful because it may allow discovery in U.S. courts even when the main dispute is outside the United States.
Attorney-client privilege: Protects confidential communications between lawyer and client made for legal advice. It is not automatic: the party claiming it must show which specific communications qualify and why.
Work product doctrine: Protects litigation-focused materials prepared by or for attorneys (strategy, notes, mental impressions), but usually not routine business records (like receipts) unless they were created primarily to assist litigation.
Privilege log: A required listing describing withheld documents in enough detail (without revealing the privileged content) so the opponent and the court can evaluate whether privilege/protection applies. Lumping many documents together and using boilerplate descriptions can be fatal.
In camera review: The judge privately reviews documents to decide if they are privileged. This is typically a follow-on step after the proponent makes an adequate, document-specific showing.
Mootness / voluntary cessation: A case becomes moot only if the court cannot give meaningful relief. A party’s promise to stop or fix the issue usually does not moot a case unless it is clear the challenged conduct cannot reasonably recur and meaningful relief is no longer possible.

Conclusion

The Eleventh Circuit’s decision underscores a practical rule with significant bite in § 1782 and ordinary discovery alike: privilege and work product claims live or die on document-by-document support. When an intervenor submits a privilege log that is lumped, vague, internally inconsistent, and unsupported by concrete detail, the district court acts within its discretion to deny protection—without conducting hearings, in camera review, or offering a do-over. The opinion also fortifies appellate jurisdiction principles in discovery disputes, holding that post-production remedies (return/destruction and limits on use) preserve a live controversy despite voluntary assurances of future destruction.