Attorney-client privilege is a client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney. As it relates to discovery, a privilege log may be utilized by a party for the purpose of withholding privileged information between the client and their attorney. However, for a privilege log to be considered sufficient, there are guidelines that must be met by the party claiming that the information is privileged.
Pursuant to Federal Rule of Civil Procedure 26(b)(5)(A), a party withholding information as privileged is required to (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.
In Estate of Manship v. United States, 236 F.R.D. 291 (M.D. La.2006), the court specified that a privilege log should not only identify the date, the author, and all recipients of each document listed, but should also describe the document's subject matter, purpose for its production, and specific explanation of why the document is privileged or immune from discovery. However, if a party fails to comply with the requirements of the federal rules and the privilege log is deemed inadequate, the claim of privilege may be rejected by the court.
Moreover, there are three notable tips that can assist an attorney with preserving privileged communications between them and their client. First, if an attorney believes that communications with their client are privileged, the attorney must make a claim of attorney-client privilege. Second, to avoid rejection of the attorney-client-privilege claim by the court, the party asserting the claim must provide a sufficient privilege log. Particularly, the burden of proof lies with the party asserting the privilege claim, and if the privilege log is deemed inadequate, there is a possible risk of waiver of privilege and sanctions. Lastly, it is important to avoid providing a conclusory description of the privileged information in the privilege log. Indeed, a party claiming that such communications are privileged should provide an adequate and factual explanation as to why the information is privileged without revealing protective information. Keep in mind that if a privilege claim and log are challenged, the court ultimately decides whether the privilege or protection applies to the privileged communications.
