Judge Rakoff also ordered the plaintiffs to produce a privilege log despite their argument "that doing so 'would disclose counsel's pre-filing investigation, mental processes, and work-product, and would identify potential non-testifying expert consultants in violation of Rule 26.'" Judge Rakoff wrote:
Thus, plaintiffs' novel argument is that the privilege log itself would be privileged. This borders on the frivolous. Rule 26(b)(5) does not end with the caveat, "if the party feels like it." It is in no way optional. Nor does it matter that plaintiffs feel the creation of a privilege loge would be "burdensome and wasteful."