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Failure to List Document in Privilege Log Did Not Warrant Waiver of Attorney-Client Privilege
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.
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