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.