# Question 36: The Subpoena and the Privilege Log

## Your role

You represent Oriole Mobility, a manufacturer of electric delivery vans, after the fictional Federal Transport Safety Office served an administrative subpoena. This is a drafting assignment. The response is due in fourteen days, and the agency has invited specific objections and a narrowing proposal.

## Governing law

Assume the following rules apply:

1. The Office may subpoena material reasonably relevant to a lawful safety investigation. Its investigative relevance is broad, but a demand may be narrowed when scope, custodians, time, or search design creates burden grossly disproportionate to likely relevance.

2. An objection must identify the particular request, the precise ground, and the proposed response. Boilerplate assertions that a request is "overbroad, burdensome, vague, and privileged" preserve nothing.

3. A party must produce responsive nonprivileged material that is reasonably available even when it objects to another portion of the same request. Objections do not justify withholding everything.

4. Attorney-client privilege protects confidential legal advice and requests for it. It does not protect underlying incident facts, ordinary engineering data, final business decisions, or documents merely copied to counsel.

5. Work product protects material prepared primarily because of anticipated litigation or enforcement. A report prepared in the ordinary course of product testing is not protected merely because litigation later arises.

6. Privileged material may be withheld only with a log identifying date, author, recipients, document type, subject matter stated without revealing advice, privilege asserted, and sufficient facts to evaluate the claim. Categorical logging is permitted only if the agency agrees.

7. A reasonable inquiry is required before stating that material is not in the company's possession, custody, or control. Control over third-party platform data depends on the company's contractual or practical right to obtain it.

8. A clawback agreement may protect against waiver from inadvertent production, but it does not excuse unreasonable review or deliberate overproduction of privileged advice.

9. The company must preserve all potentially responsive sources while objections and negotiations proceed.

10. Counsel should propose search terms, custodians, date ranges, sampling, phased production, or other concrete limits rather than objecting without an alternative.

## Facts

The Office is investigating three battery-thermal events involving Oriole's Osprey electric delivery van. The Osprey entered commercial service on January 1, 2022. The subpoena defines the investigation period as January 1, 2018 through December 31, 2026.

The subpoena includes these requests:

**Request 1.** All customer complaints concerning heat, smoke, fire, charging, batteries, or electrical odor for every Oriole vehicle from 2018 through 2026.

**Request 2.** All company communications containing any form of the words "battery," "heat," "smoke," "fire," or "charge," without custodian or date limitation.

**Request 3.** All communications between Oriole and any lawyer concerning battery safety, product compliance, reporting duties, recalls, customer complaints, or the three events.

**Request 4.** All board and safety-committee materials concerning the Osprey battery system and the three events.

**Request 5.** The complete incident database, test results, source data, photographs, and metadata for the three events and substantially similar Osprey events.

**Request 6.** All reports by Emberline Engineering concerning Osprey batteries.

Oriole's preliminary collection shows:

* Request 1 reaches four vehicle lines that use different battery systems. The Osprey did not exist commercially before 2022.
* Request 2 returns approximately 18 million messages, including cafeteria notices about "fire drills" and routine charging reminders.
* Request 3 includes legal advice but also transmits engineering photographs and test data to counsel.
* Request 4 includes ordinary board minutes, attachments from outside counsel, and mixed legal-business presentations.
* Request 5 can be collected from the incident database and engineering repository within eight days.
* Emberline prepared annual battery-validation reports from 2020 through 2024 under a standing engineering contract. After the second thermal event, outside counsel separately retained Emberline to analyze litigation and enforcement risk under a new confidential engagement.

Oriole sells through independent regional resellers. Some reseller complaints may be stored in reseller ticketing systems. Oriole's file does not yet establish how many such complaints exist, whether the contracts give Oriole a right to retrieve them, or which systems contain them.

The Office has offered a nonwaiver and clawback agreement and asks Oriole to identify five initial custodians, a reasonable Osprey date range, and proposed search terms. Oriole's general counsel wants to object to every request and produce nothing until the agency narrows the subpoena.

## Assignment

Draft, in final form:

1. **Oriole's specific written objections and responses to Requests 1 through 6**, stating what Oriole will produce, what it will withhold, what it will investigate, and the concrete narrowing or phased-production proposal for each request.

2. **A privilege-log and clawback protocol** describing the required log fields, treatment of mixed documents and attachments, timing, and handling of any inadvertently produced material.

The draft must preserve legitimate privilege and work product without asserting blanket privilege over facts, ordinary engineering work, or entire requests. It must identify the reseller-control facts still under investigation and must not state that those records are outside Oriole's control before the reasonable inquiry is complete.

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