Equal Employment Opportunity Commission v. BDO USA, L.L.P., 876 F.3d 690

Bower, a former CHRO at BDO, filed an EEOC charge alleging gender discrimination, retaliation, hostile work environment, and classwide issues; BDO denied the allegations and submitted position statements.
The EEOC issued RFIs and a subpoena seeking documents related to its investigation; BDO produced some documents and withheld others, supplying a 278-entry privilege log asserting attorney-client privilege.
The EEOC sued to enforce the subpoena, arguing BDO’s privilege log was deficient and that many communications were business (not legal) in nature or merely courtesy-copied to counsel.
A magistrate judge declined in camera review, found the privilege log adequate, denied enforcement, and granted BDO a protective order restraining the EEOC from certain witness questioning and requiring return/destruction of materials.
The district court summarily affirmed; the EEOC appealed to the Fifth Circuit challenging (1) the privilege-log analysis and burden allocation and (2) the scope and legal basis for the protective order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BDO’s privilege log sufficiently establishes attorney-client privilege for withheld documents	EEOC: log is deficient; many entries reflect business communications or courtesy copies, not legal advice; magistrate misallocated burden	BDO: log descriptions sufficient; communications with/ copied to counsel are privileged; protective relief justified	Court vacated and remanded: district court erred by treating communications with counsel as per se privileged and inverting the burden; proper privilege standards must be applied
Whether the protective order was properly granted and appropriately scoped	EEOC: protective order rests on same overly broad privilege view and unlawfully bars witness testimony and requires disclosure/return/destruction beyond lawful scope	BDO: protective order needed to prevent disclosure of privileged communications and preserve privilege	Court vacated and remanded: magistrate applied incorrect legal standard; protective order may be appropriate but must be reconsidered under correct law

In re Auclair, 961 F.2d 65 (5th Cir. 1992) (privilege is a fact-based inquiry)
Hodges, Grant & Kaufmann v. United States, 768 F.2d 719 (5th Cir. 1985) (burden on party asserting privilege)
Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (scope of corporate attorney-client privilege)
United States v. Robinson, 121 F.3d 971 (5th Cir. 1997) (elements for privileged communication)
In re Avental, S.A., 343 F.3d 311 (5th Cir. 2003) (appellate review standards for privilege issues)
In re County of Erie, 473 F.3d 413 (2d Cir. 2007) (privilege requires communications for legal assistance)
Exxon Mobil Corp. v. Hill, 751 F.3d 379 (5th Cir. 2014) (mixed business/legal communications: context and manifest purpose govern)
United States v. El Paso Co., 682 F.2d 530 (5th Cir. 1982) (privilege log must enable testing of privilege claims)
NLRB v. Interbake Foods, LLC, 637 F.3d 492 (4th Cir. 2011) (attorney-client privilege not automatic because counsel was copied)
United States v. Zolin, 491 U.S. 554 (U.S. 1989) (in camera review appropriate when privilege is contested)