Privilege logs are the accepted method by which a party defends its claims of privilege in a litigation or regulatory proceeding. They allow the opposing party to evaluate those claims and, if necessary, challenge them. While there are some jurisdictions or matters in which privilege logs are not mandatory, all standard litigation and regulatory investigations in the United States require them.
The rules surrounding privilege logs have changed over time, and as a result, there are now choices in what type of privilege log a party elects to use. There are four standard types of privilege logs: the metadata log, the standard log, the categorical log, and the customized log. Each includes different types of information and requires different levels of effort to compile. Here we explore the four types of privilege logs, noting the pros and cons of each.
The metadata log is compiled using only that: the metadata, or electronically stored information, from the documents. As such, it takes a minimum of effort and time to complete. It does not typically include things such as subject matter descriptions, which are standard to the other three types of logs and are often considered crucial in evaluating the claim of privilege. Because of its exclusions, the metadata log is not automatically acceptable in every situation and will most likely require the agreement of the opposing party. However, if such an agreement can be reached, this is easily the most cost-effective log available.
The standard privilege log is the most commonly used and accepted log type and includes both clean, normalized metadata and work product. It does require a manual review of the documents to supplement the metadata information and create the log. As such, it is less cost-efficient than the metadata log but contains more detailed information to justify claims of privilege. Generally, you do not need the agreement of the opposing party to employ this log. In certain contexts, especially in asymmetrical situations where the opposing party treats the privilege log as a way to significantly increase the burden on the producing party, it may be better to start with the standard log. This is because the time and cost associated with proposing and working toward other types of logs may in the end outweigh the cost of simply starting where you would inevitably wind up.
The categorical log was once considered the next big thing, but its advancements are mostly in terms of elegance and brevity, rather than efficiency. This type of privilege log uses the same information as that on a standard log, but groups documents into subject matter “categories.” Each category will include a date range, a range of participants, and the varying file types. Because all the same information and work is required as for a standard log, it is not more cost-efficient or defensible. However categorical privilege logs are often preferable for their useful organization of the data. In some courts, a categorical log is per se acceptable, while in others you may need to get the opposing party’s agreement.
Custom privilege logs are created using individualized coding and unique descriptions for each document. Needless to say, this log is by far the most expensive to put together but also the most defensible type. It is not generally demanded by any courts – although there are some jurisdiction-specific requirements for creating bespoke entries for each document – and because of the cost, not usually insisted upon by the parties to a litigation. However, in recent investigations, regulatory agencies such as the Federal Trade Commission and Department of Justice have been increasingly requiring logs that are more custom than standard. If possible, parties should avoid using custom logs, not only because of the cost but because the more information is given, the easier it is for the opposing party to argue that the information provided functions to waive the privilege.
As you can see, there are advantages and disadvantages to each of the four commonly accepted types of privilege logs. Counsel must evaluate which log to use based not only on the matter at hand but on the risk tolerance of the client. In the end, the best strategy is to, where possible, meet and confer to agree with the opposing party on the appropriate approach to take.
