Crowder v. LinkedIn Corporation

Background

This discovery order addresses a dispute over LinkedIn Corporation’s privilege logs in a putative antitrust class action. Plaintiffs argued that LinkedIn substantially completed document production on June 30, 2026, but did not provide a custodial privilege log until August 3. LinkedIn then served more than 6,000 of approximately 7,000 entries between August 21 and August 27, 22 days before the September 18 fact-discovery cutoff and while depositions of affected custodians were underway.

Plaintiffs also challenged the logs’ descriptions and omissions. They identified entries referring generally to the “LinkedIn Legal Department,” descriptions concerning “API agreements / technology partnerships” and “data privacy / GDPR compliance,” missing information about authors, recipients, document locations, and confidentiality, and documents allegedly shared with third parties. They asked the court to find privilege waived for every document that was not timely logged, or alternatively to review a sample of entries privately.

LinkedIn responded that its logs accompanied rolling productions made from August 3 through August 27, complied with the court’s standing order, and reflected the timing of its privilege determinations. It said clerical issues had been corrected and that it had produced in full the four specifically challenged documents.

Legal standards

Federal Rule of Civil Procedure 26(b)(5)(A) requires a party withholding information as privileged to identify the privilege and describe the withheld material sufficiently for other parties and the court to evaluate the claim without revealing the protected information. The court’s standing order requires a privilege log as quickly as possible and no later than 14 days after disclosures or discovery responses are due, unless the parties stipulate to a different schedule or the court sets one.

The court applied the Ninth Circuit’s case-by-case approach to privilege waiver. Untimeliness alone does not automatically waive privilege. The analysis considers whether the log allows evaluation of each claim, the timing of the assertion and supporting information, the size of the production, and other circumstances affecting the difficulty of responding.

Analysis

The court found that plaintiffs’ four-year description of the delay overstated the issue because the case had a lengthy discovery stay and plaintiffs served requests as recently as June 3, 2026. But it also rejected LinkedIn’s position that a privilege log is due only when the producing party finishes making privilege determinations. The court said that approach would allow the withholding party to set its own schedule and would make the standing order’s 14-day default meaningless. LinkedIn had not obtained a stipulation or court order setting a different schedule.

The court held that the timeliness factor favored plaintiffs and that the timing caused real prejudice because plaintiffs were deposing custodians whose files contained redactions they could not meaningfully test. At the same time, the court found that the adequacy issues were not one-sided. A reference to a legal department is not automatically insufficient if the document itself shows that legal advice was sought or provided, but a bare reference may not allow evaluation of the claim. The court also found that repeated descriptions can result from agreed search terms and attorney-custodian collections, while emphasizing that descriptions covering thousands of documents must still allow assessment of each individual claim.

The court said that sharing legal advice between a parent and subsidiary does not necessarily destroy confidentiality. It treated the two documents allegedly circulated to third parties as appropriate subjects for review unless LinkedIn removed their privilege designations. The court also noted that LinkedIn represented that it had corrected missing log information and had produced the four specifically challenged documents in full. Those productions resolved the individual disputes about those documents but did not resolve the accuracy issue involving a redaction that plaintiffs said appeared unredacted elsewhere and looked like business commentary rather than legal advice.

Ruling and required steps

Judge Laurel Beeler denied the request for a blanket waiver, without prejudice. The court concluded that removing privilege from thousands of documents would be disproportionate on this record, considering the size of the production, the document-by-document review required, the limited metadata for the reproduced dataset, LinkedIn’s rolling logs, its amendments, and its production of specifically challenged documents.

The court ordered plaintiffs, within two court days, to identify up to 25 privilege-log entries for private judicial review. The selection should cover the challenged categories, including departmental-source entries, formulaic descriptions, entries involving Microsoft counsel, and, if plaintiffs choose, the two documents allegedly circulated to third parties. LinkedIn must lodge the selected documents in unredacted form, provide redacted versions for comparison where applicable, provide the corresponding log entries, and provide updated privilege logs.

If the review shows significant over-designation, the court may order tailored relief, including category-wide re-review, targeted findings of waiver, or payment of fees. If documents from a custodian’s files are later de-designated, unredacted, or produced after that custodian’s deposition, plaintiffs may reopen the deposition remotely for up to two hours. The order disposes of ECF No. 288.