Federal Rules Guiding Privilege Logs
The Federal Rules of Civil Procedure (“FRCP”) do not use the term privilege log or otherwise spell out procedures for logging privileged documents. Instead, FRCP 26(b)(5)(A)(ii) requires parties who withhold documents on the grounds of privilege to provide sufficient detail about those documents so the opposing party can assess the privilege claim. Specifically, the rule states that the withholding party must “describe the nature” of the documents, communications, or tangible things withheld “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”
Types of Privilege Logs
The absence of strict procedural guidance leaves much room for interpretation, prompting the emergence of various types of privilege logs tailored to different legal contexts.
A. Traditional Privilege Logs
The traditional privilege log is the most detailed and burdensome form. It requires a line-by-line description of each document, including the author, recipients, date, and a description of the subject matter sufficient to explain the claim of privilege. Traditional logs are often time-consuming and expensive to produce, particularly in large-scale litigation involving thousands of documents. Despite their complexity, they provide the most thorough level of detail, making them common in high-stakes litigation.
B. Metadata Privilege Logs
A metadata log simplifies the process by providing only the metadata extracted from withheld documents—such as date, author, recipients, file type, and document title—without including a narrative description. These logs streamline the process by automating much of the data entry, reducing time and costs. However, the lack of a detailed narrative can leave privilege claims vulnerable to challenges, particularly when more context is needed to substantiate the privilege.
C. Categorical Privilege Logs
Categorical logs group documents into broad categories based on shared characteristics (e.g., all emails between specific parties during a certain date range). Instead of providing a line-by-line description, the log assigns a common description of privilege to an entire group of documents. This method is particularly useful in large-scale litigation and is often negotiated between parties to reduce the burden of creating a traditional log. While categorical logs are efficient, they can be problematic if the descriptions lack sufficient detail to justify the privilege.
Best Practices for Creating an Effective Privilege Log
Given the varying complexity and scope of privilege logs, attorneys should follow several best practices to ensure that their logs meet the legal requirements and facilitate smooth litigation.
1. Negotiate Privilege Log Requirements Early
To avoid disputes down the line, it is critical for parties to meet and confer to come to a mutual decision on privilege log requirements at the beginning of discovery. Ideally, this will take the form of a written document such as an electronically stored information (“ESI”) agreement or privilege review protocol. Procedures for privilege review and parameters for privilege logs can also be incorporated into broader e-discovery protocol documents. Documenting the privilege review process early puts the parties in a better position to provide and receive the information needed to properly assess privilege claims for a particular matter. This collaborative decision can also help prevent misunderstandings and costly discovery disputes later in the litigation process.
2. Check Local Rules
While many courts leave the issue to the parties, some have significant privilege log requirements. Some jurisdictions have local rules that dictate the format or content of privilege logs, so it is important for counsel to learn these requirements early in the litigation process. For example, New York State courts strongly promote categorical logs through local rules. Tailoring your privilege log to meet local court requirements ensures compliance and reduces the risk of objections.
3. Choose the Right Type of Privilege Log
The parties should decide whether to use a traditional, metadata, or categorical privilege log, depending on the case’s complexity and the volume of documents.
4. Agree on Required Fields for the Privilege Log
To comply with FRCP 26(b)(5)(A)(ii), the log must contain sufficient information to allow the receiving party to understand the basis for the claim. Agreement should be reached on which fields to include in a privilege log. At a minimum, the log should contain the date of the document, the author and recipients, the privilege asserted, and a brief description of the privileged content. In addition to these basic fields, parties should consider including more specific details based on the scope and complexity of the case, such as document type, document Bates number or unique identifier, and purpose of the communication.
5. Include Clear Descriptions of Privilege
Clearly denoting the basis for the privilege is essential. In addition to the attorney-client privilege and work-product doctrine, be prepared to discuss and include other relevant privileges, such as common interest, doctor-patient, accountant-client, and priest-penitent privileges, depending on the case and jurisdiction. Accurate privilege descriptions reduce the likelihood of challenges and ensure that the withheld information is properly protected.
6. Establish Date Ranges
Parties should agree on a relevant date range for logging privileged documents. Typically, attorney-client communications postdating the filing of the complaint are not logged unless the case involves ongoing conduct relevant to the claims. Establishing clear parameters around which communications must be logged can significantly reduce the burden on both parties.
7. Consider Redaction Instead of Withholding
Redacting privileged content, particularly in email strings—instead of withholding entire documents—can preserve context and reduce disputes. Often, the author, recipients, and dates of emails are not privileged. By redacting, it preserves so-called parent-child relationships, and the face of the document provides most of what one would otherwise have to log, save for the nature of the privilege asserted. Whether redaction is an appropriate aspect of a privilege review process depends on the facts and circumstances of each case.
8. Assess Attachments Separately
Attachments to privileged emails are not automatically privileged. Each attachment must be independently assessed for privilege claims. Failing to do so can result in nonprivileged documents being improperly withheld, leading to challenges.
9. Utilize Name Normalization
Normalization refers to writing a person’s name the same way each time it appears on the log. This normalization reduces confusion and makes it easier for the opposing party to review the log. For instance, all variations of “John Smith” (e.g., “J. Smith,” “[email protected]”) should be standardized to a single format throughout the log.
10. Be Transparent with Third-Party Communications
When third parties are involved in communications, assess whether disclosure to those third parties waives privilege. Privilege claims involving third-party recipients are frequently challenged, so proactively identifying these parties can help prevent future disputes.
11. Coordinate the Timing of Production
Privilege logs are typically produced after the final document production. Agreeing to a specific deadline, such as thirty to sixty days after production, can prevent unnecessary administrative burdens and ensure completeness. Rolling logs are administratively inefficient as there may be corrections, omissions, or documents that need to be clawed back.
Conclusion
Preparing a privilege log is a fundamental aspect of the discovery process in litigation. While there is no one-size-fits-all approach, understanding the numerous considerations can help attorneys create effective and compliant logs.
