Many things find their way onto an exhibit list that are not clearly admissible, or even exhibits in the quotidian sense. The rules are often vague about the propriety of presenting things like prior pleadings and discovery responses, much less the mechanism for doing so, and thus its fairly common to see all these and the kitchen sink placed on an exhibit list. Once there, they mostly molder, unremarked upon, until they happen to become relevant enough to spark a dispute.
Last week (whilst I was on vacation acquiring a flu that dogs my every step like grim death) Judge Williams set forth a pretty clear rule prohibiting the inclusion of privilege logs on an exhibit list:
The Court grants-in-part Milwaukee's motion to exclude the privilege logs, but denies the remainder of Milwaukee's motion without prejudice. The privilege logs are not relevant because the logs make no material fact more or less likely. Even if Milwaukee were to have waived privilege with respect to its clearance program, the privilege logs would not be relevant because the mere assertion of privilege is "unremarkable and irrelevant."
Persawvere, Inc. v. Milwaukee Elec. Tool, Corp., C.A. No. 21-400-GBM, at 6 (D. Del. Nov. 21, 2023) (Mem. Ord).
The parties raised the issue via a MIL seeking to remove the log from the exhibit list and to prohibit the playing of any testimony wherein deponents had claimed privilege. The whole thing was part of a larger dispute about waiver of privilege over testing of the accused products. Judge Williams granted the motion as to the privilege log itself (by my quick search, the first ruling on the issue in Delaware) but denied it as to the testimony, noting If the [testing] is put at-issue at trial, Persawvere's introduction of deposition testimony that includes a deponent asserting privilege may become relevant." Id.
