In The Courts

In United States v. British American Tobacco (Investments) Ltd., 2004 WL 2434615 (D.C. Cir. Nov. 2, 2004), the D.C. Circuit considered whether waiver of the attorney-client privilege was an appropriate sanction for failure to list a document in a privilege log. The district court held that British American Tobacco (Investments) Ltd. (BAT) waived any privilege to an attorney memorandum by failing to log it, because BAT lacked a reasonable belief that its general objections to the government's document request applied to the memorandum. In its analysis, the district court focused almost exclusively on BAT's alleged delay in raising its objections.

The D.C. Circuit reversed, noting that waiver is a “serious sanction that requires, at the very least, a showing that [BAT] failed to log the memorandum without [a] reasonable belief that its objections applied to it.” First, the D.C. Circuit held that a party's failure to timely raise objections “may well justify an inference that, rather than reasonably believing an objection applied, the party has simply come up with a post hoc rationale for withholding a document.” But the district court should not have considered the issue of timeliness — the D.C. Circuit had previously issued two opinions in the case that held BAT timely raised its objections. Second, although no objections applied to the memorandum, one of the objections was unclear and BAT's interpretation had some support in the objection's text. Accordingly, BAT had a reasonable belief that one of its objections applied to the memorandum and should not be sanctioned with waiver for failing to log the memorandum.