The reality is that privilege logs are necessary for litigation if you want to protect communications from privilege. A sloppy or incomplete log may result in expensive, time-consuming litigation, or it may allow an adversary to view your client’s confidences and litigation strategy, and identify weaknesses or stay steps ahead of your litigation plan.
We offer the following guidance on why you may want to create a privilege log and how to create one that will operate best in litigation.
Discovery rules generally allow discovery only of nonprivileged information.
Federal law generally requires a party to create a privilege log if the party is withholding responsive information from a discovery production on the basis of privilege. Most civil litigation—and to a large extent much criminal litigation—generally follows the construct for discovery codified in the Federal Rules of Civil Procedure (FRCP). FRPC 26(b)(1) establishes a very broad scope of discovery in federal civil litigation as follows:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Note that, right from the start, FRCP 26(b)(1) establishes a distinction between “privileged” and “nonprivileged” matters—a party may only obtain discovery of “nonprivileged matters... relevant to any party’s claim or defense.” (Emphasis added) Rule 26(b)(1) excludes from discovery privileged information.
Privilege logs identify what privileged information is being withheld from production.
Since privileged material is exempt from discovery, we could simply allow a party to produce whatever the party considered nonprivileged and withhold from production whatever the party considered privileged. Of course, such a system would require us to rely upon the parties to properly determine what was privileged, and to withhold only privileged information – and not just withholding what they wanted to withhold because it would materially help their adversary or materially harm the party’s case.
Few litigators are willing to place such trust on an opponent’s understanding of the law and willingness to be forthcoming. Instead, we live in a “trust but verify” world. FRCP 26(b)(5) requires a party to provide a list (the privilege log) of the information being withheld from a discovery production as privileged. FRCP 26(b)(5) states:
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
Federal Rule 26 does not actually mention the words “privilege log.” Instead, the term “privilege log” is used to identify the document where a party makes the express claim of privilege and the description of what is being withheld.
If a party wants to assert privilege to protect documents from production, creation of some sort of privilege log is often considered necessary. Of course, litigants also may decide to trust each other to withhold only what is privileged, without a privilege log, and avoid the burden of creating a log. If you choose to pursue this course, we strongly suggest that you memorialize the agreement, so that a change in counsel, circumstances, or relationships does not result in subsequent arguments regarding what agreement was reached.