McSwain v. HOMAG Machinery North America, Inc., No. 7:25-cv-00407-DCC (D.S.C. Aug. 19, 2026), full opinion (PDF)
Stiles Machinery, a defendant in a South Carolina wrongful death case, withheld two sets of email chains, describing them in two entries on its privilege log. Judge Donald C. Coggins, Jr. sustained the privilege claim over the chains in one entry, rejected it on the other, then concluded that the log describing both was insufficient. State law supplies the rule for whether privilege attaches to withheld ESI. Federal law supplies the standard for the log.
What Happened
The plaintiff sued the companies alleged to have sold, delivered, and installed the industrial panel saw that killed her decedent. Her document requests reached emails, text messages, and other communications about the machine and the incident. Stiles' initial production carried no privilege objection and no log.
A log came later at the plaintiff's request, followed by a supplemental production with no log at all. Two entries on the operative log were in dispute by the time the plaintiff moved to compel. One described email chains that Stiles' parent company had sent to its general counsel. The other described an exchange between that general counsel and the company's insurance broker.
The Court's Analysis
Stiles argued that South Carolina law governed the whole dispute. The court accepted half of that. Under the Erie doctrine and Federal Rule of Evidence 501, the court stated, South Carolina law supplies the rule on whether attorney-client privilege applies to the documents. Whether the log describing those documents is adequate is a question of federal procedure. In the court's words, "the production of a privilege log asserting attorney-client privilege over certain documents in order to withhold that information from discovery is procedural and, therefore, governed by federal law."
Measured against the description federal courts look for under Rule 26(b)(5)(A), the log came up one element short. The court acknowledged that the log supplied the nature of the privilege claimed, the people sending and receiving, and the general subject matter. Neither entry gave the date and place of the communication. That omission was of particular importance, the court noted, because Stiles had argued that communications from a particular period predated its retention of litigation counsel. The court concluded that the log's disclosures were insufficient to let the plaintiff assess the claim.
The court identified four remedies for an inadequate or untimely log. It declined the harshest, reasoning that courts generally find waiver only in cases involving unjustified delay, inexcusable conduct and bad faith. It found no unjustified delay and no bad faith here, describing a party that had misunderstood its obligation, then tried to remedy the log when the plaintiff asked. The court settled instead on the in camera review it had already ordered and completed.
The court concluded that the email chains in the first entry were privileged, most of their attachments not. Those attachments, in the court's description, were factual communications between employees about the incident, with no indication they were created to obtain legal advice. Quoting Mason C. Day Excavating, the court restated that a document not privileged in the client's hands will not be "imbued with the privilege merely because the document is handed over to the attorney." The general counsel's exchange with the insurance broker was not privileged, in the court's view, because Stiles made those communications in the ordinary course of business under a contractual obligation to notify the insurer of a loss.
Why It Matters
Winning the privilege question does not carry the log. Stiles kept the chains described in its first entry. Rule 26(b)(5)(A) still measured the document describing them, because a privilege log is federal procedure whatever law supplies the privilege. A party withholding ESI in a diversity case should brief each question in the body of law that governs it.
A privilege log is measured against the issue actually in dispute, not against a fixed checklist. Stiles' two entries carried the rest of the standard description. They failed on the element Stiles' own timing argument depended on. A description that reads complete in the abstract can be insufficient where the dates of the communications are the disputed question.
The in camera review then separated the privileged chains from most of the documents attached to them. The court declined to treat those attachments as privileged by association. Each attachment needs its own analysis, because a pre-existing business record does not acquire protection by traveling to counsel.
In the court's account the record showed no bad faith, an attempted cure, an open discovery period, and no assertion of prejudice. The defective log cost Stiles nothing on the entry it won. The court called waiver available, declining it on this record. Cure the log while discovery is still open, as soon as the other side raises the deficiency. That record gives a court little reason to reach waiver.
The full opinion is available as a PDF.
