In a development that will come as good news to a great many practitioners, the tide of judicial opinion which has often been totally "zero tolerant" of incomplete privilege logs may be turning, if the following opinion is any indication:
Progressive Cas. Ins. Co. v. Federal Dep. Ins. Corp., 298 F.R.D. 417, 421 (N.D. Iowa 2014)(Strand, U.S.M.J.):
The Rules of Procedure are so deferential to the laudatory purpose of protecting recognized privileges that a party may actually recall inadvertently-produced privileged materials and, in effect, pretend that they had not been produced. See Fed. R. Civ. P. 26(b)(5)(B). If a party may maintain its claim of privilege even after actually producing privileged information to its opponent, I am not going to find waiver simply because I find that the party did not provide quite enough information in a privilege log. That is particularly true where, as here, there is no indication that the party acted in bad faith.
Please Read The Disclaimer.
Reprinted with the permission of Thomson Reuters and the author from the manuscript of the author's 2015 Supplement chapters, and in particular Section 8:6, in “Litigation and Prevention of Insurer Bad Faith, 3d” ©2015 by Thomson Reuters.