The Act of Production, Foregone Conclusions, and Privilege Logs
March 20, 2025 | New York Law Journal
Parties seeking to withhold documents from discovery are generally required to provide a privilege log identifying the documents at issue and the basis for withholding them. Earlier this year, the United States Court of Appeals for the Ninth Circuit addressed the tension between the privilege log requirement and the assertion of the Fifth Amendment act of production doctrine, which protects individuals from being compelled to produce documents in certain circumstances. In In re Grand Jury Subpoena, dated July 21, 2023, 127 F.4th 139 (9th Cir. 2025), the court recognized that a privilege log may provide the government with the information needed to overcome the act of production doctrine by establishing that the existence, authenticity, and custody of the documents were a “foregone conclusion.” In his latest article for the NYLJ, “The Act of Production, Foregone Conclusions, and Privilege Logs,” Morvillo Abramowitz Grand Iason & Anello partner Jeremy H. Temkin discusses the act of production doctrine, analyzes the Ninth Circuit’s recent decision, and notes that the case highlights the danger of requiring a party to prepare a privilege log without consideration of the privilege being asserted.
The Act of Production, Foregone Conclusions, and Privilege Logs
