Privilege logs have been likened to “sewers of litigation,” but, like sewers, privilege logs all too often are underappreciated. Stilwell Assocs., L.P. v. Hopfed Bancorp, Inc., C.A. No. 2017-0343-JTL, at 113 (Del. Ch. Ct. Aug. 28, 2017) (transcript) (“The reality is that, unfortunately, privilege logs are one of the sewers of litigation practice. Privilege logs can be and are used to hide documents.”). In litigation, a well-crafted privilege log can be the difference between an early settlement and a victory at trial. And even in cases where a privilege log will not be case-dispositive, it nonetheless will be impactful to the extent that it properly preserves the client’s privilege and immunities.
The volume of cases before the Delaware Court of Chancery has contributed to the development of a significant body of case law on the subject of privilege logs. When litigating before the Court of Chancery, it is incumbent on the practitioner to be familiar with this case law—and mindful of the court’s requirements for drafting and producing privilege logs. Here are some tips for privilege log compliance in cases before the Delaware Court of Chancery.