5th Circuit Discusses Privilege Logs In Connection With EEOC Investigation

Company records and communications are typically subject to disclosure in government investigations. They may be protected from disclosure if they are protected by the attorney client privilege or attorney-work product doctrine. However, invocation of these privileges is not automatic, as confirmed in a May 4 ruling by the U.S. States Court of Appeals for the Fifth Circuit. In EEOC v. BDO USA, LLP, the Court of Appeals issued a ruling clarifying the use of a privilege log to invoke the protections of the attorney-client privilege when responding to an agency’s request for documents as part of an investigation of employment discrimination claims.

The Court of Appeals reversed the trial court, and held that the defendant’s use of a privilege log to shield many documents and communications from the Equal Employment Opportunity Commission (EEOC) was not sufficient to establish that the attorney-client privilege protected these communications (with the corporation, its in- house counsel and outside counsel) from disclosure. The EEOC had made several requests for this information, which were rejected, forcing the EEOC to subpoena these records, followed by filing an enforcement action in the trial court.

The Court of Appeals ruled that the trial court (and the presiding Magistrate) erred when they held that the log’s cataloged communications were “per se” privileged, and returned the case to the trial court for “a determination consistent with this opinion.” The Court of Appeals noted that the log itself was too vague to enable a court to determine whether a sphere of confidentiality existed, and that an in camera review will be necessary to resolve the issue.