Preparing privilege logs can be one of the most time consuming and difficult tasks in commercial litigation. It is also commonly assigned to the more junior attorneys on the team. As recognized by the Delaware Court of Chancery, “[t]here is no reward for doing a good privilege log. It’s painful. It results in these huge documents. No one has any incentive to be responsible [on] a privilege log as opposed to [being] overinclusive. Junior associates or paralegals get tasked with it. They screw up if they don’t log a document, not if they come to the partner and say, ‘Really, this one shouldn't be logged.’” Klig v. Deloitte LLP, 2010 WL 3489735 at *3 (Del Ch. Sept. 7, 2010).
Just because a document includes an attorney does not automatically make the document privileged. In fact, a statement made to or by an attorney is not automatically subject to privilege; communications must be made “for the purpose of facilitating the rendition of professional legal services to the client.” D.R.E. 502(b); see also SICPA Hldgs. S.A. v. Optical Coating Lab., Inc., 1996 WL 577143, at *2 (Del. Ch. Sept. 23, 1996). While the privilege protects the communications themselves, “it does not protect facts from discovery, even if the exclusive source of a witness’s knowledge of those facts is the client’s attorney.” Cincinnati Bell Cellular Sys. Co. v. Ameritech Mobile Phone Servs. of Cincinnati, Inc., 1995 WL 347799, at *2 (Del. Ch. May 17, 1995) (citing I.B.M. v. Comdisco, Inc., 1992 WL 52143 (Del. Super. Ct. Mar. 11, 1992)). “[P]rivilege protects legal advice, as opposed to business or personal advice.” Lee v. Engle, 1995 WL 761222, at *1 (Del. Ch. Dec. 15, 1995).
A deficient privilege log can result in severe consequences, including time-consuming discovery disputes or waiver of privilege. Accordingly, young lawyers should understand both the requirements of a proper privilege log and how to assist the more senior members on the litigation team with preparing such logs.
Requirements. The requirements for preparing a sufficient privilege log in Delaware are well known. Parties must identify: “(a) the date of the communication, (b) the parties to the communication (including their names and corporate positions), (c) the names of the attorneys who were parties to the communication, and (d) the subject [matter] of the communication sufficient to show why the privilege applies.” Unisuper Ltd. v. News Corp., (Del. Ch. Mar. 9, 2006) (ORDER). The description of the document needs to contain sufficient facts to demonstrate why that document is privileged. Privilege logs are also commonly accompanied with a “players list” that not only shows the identity of attorneys, but also the positions of the non-lawyers on the communications. Failure to include the identity of certain players or the rote copying and pasting of privilege descriptions can result in waiver.
Drafting tips for young lawyers. When creating a privilege log, young lawyers should consider the following tips to prepare a proper log:
- Identify the fields to include in the privilege log. Common fields include parent/attachment, document type, date, to/from/cc/bcc (if known) fields, privilege description, and document description.
- During the privilege review process or as an initial step when creating the privilege log, keep track of the key players. Creating a players list early will make it easier to identify privileged documents and write accurate descriptions.
- Identify what privilege is being asserted for each document and ensure that the document description adequately conveys why the document is protected by that privilege. If a document is being withheld under the attorney-client privilege, the description should contain language indicating that legal advice was requested, provided, or discussed. If a document is protected by the work-product doctrine, make sure that the description conveys that the document was prepared in anticipation of litigation. Also, different jurisdictions may recognize different privileges or apply the attorney-client privilege or work-product doctrine in different ways. For example, in Delaware, a document protected by the attorney-client privilege does not lose its privilege where non-clients such as investment bankers or financial advisors, who are part of the client team, are involved. Thus, young lawyers need to know the various types of privilege available and the elements of each.
- Take the time to review each document identified on the privilege log. A thorough review will reduce the number of documents withheld in error and will make the document descriptions more accurate.
- The lack of attorneys on a communication does not mean that it is not privileged. Likewise, the mere presence of attorneys does not, in and of itself, make the document privileged.
- It is helpful to keep the document families together. This will provide additional context for the document description and will make it easier to identify documents that have been tagged incorrectly.
- Determine whether the judge in the case has specific privilege log requirements.