Solving the “‘Privilege Log’ Problem”: Proposed Changes to Federal Rules of Civil Procedure 16 & 26

Changes to Federal Rules of Civil Procedure 16(b) and 26(f) are projected to come into effect in December 2025.[1] These changes, should they come in to effect, have been promulgated to address what proponents refer to as the “‘privilege log’ problem.”[2] The proposed amendments essentially seek to bring compliance with Rule 26(b)(5)(A) to the parties’ attention at the beginning of the litigation process to avoid privilege-related disputes near the end of discovery.[3] Compliance with Rule 26(b)(5)(A) concerns the manner in which a party describes the documents it has determined to withhold from production due to privilege.[4] 

What is the “‘Privilege Log’ Problem”? 

As my colleague Russell Beets pointed out last month in his blog “Taming the Privilege Log Beast,” drafting a privilege log is often a time-consuming and tedious process. This is particularly true today given that the volume of documents involved in discovery has grown exponentially thanks to computers and email. Naturally, increased time, means increased costs.

A party may attempt to circumvent this problem by producing a categorical privilege log, in lieu of the customary document-by-document, or “traditional,” privilege log. The categorical approach, however, has its own problems. For instance, the receiving party may be surprised to receive a categorical privilege log when it expected a document-by-document privilege log, which is the typical format of privilege log employed. Moreover, a common issue with categorical privilege logs is that the categories may be too broad. While a categorical privilege log may be permitted, it must still be drafted in a manner that will enable the opposing party to properly assess the adequacy of the privilege claim asserted as required by Rule 26(b)(5)(A). As many of us know, the task of drafting a privilege log is often left to more junior lawyers, but even seasoned attorneys can struggle in making correct privilege determinations. As such, whatever suspicions a receiving party may already have concerning the adequacy of a document-by-document privilege log, such suspicions may be compounded in the context of a categorical privilege log, which can be harder to craft. 

The bigger issue here is that all these issues are more likely to arise towards the end of discovery, when privilege logs are typically produced, leading to additional disputes and delay that a more proactive approach could have avoided. 

So, What Are the Proposed Changes?

As you know, Rule 26(f)(3) requires the parties to meet and confer to develop a discovery plan to address topics such as the timing and scope of discovery, among other things.[5] Subsection (D) already requires the parties to state their “views and proposals” on “any issues about claims of privilege,” including whether the “parties agree on a procedure to assert [such] claims after production….”[6] The proposed amendment expands subsection (D) to make it an express requirement for the parties to address “the timing and method for complying with Rule 26(b)(5)(A)….”[7]

Proposed Rule 26(f)(3)(D):

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

* * * * *

(D) any issues about claims of privilege or of protection as trial-preparation materials, including the timing and method for complying with Rule 26(b)(5)(A) and—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502[.]

Essentially the same language is proposed for Rule 16(b), which will afford the court discretion to “include the timing and method for complying with Rule 26(b)(5)(A)” in its scheduling order.[8]

Proposed Rule 16(b)(3)(B):

(b) Scheduling and Management.

* * * * *

(3) Contents of the Order.

* * * * *

(B) Permitted Contents.

* * * * *

(iv) include the timing and method for complying with Rule 26(b)(5)(A) and any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502[.]

The draft committee notes accompanying the proposed amendments to Rules 16 and 26 note that requiring the parties to discuss compliance with Rule 26(b)(5)(A) as part of their Rule 26(f) conference may allow the parries to identify “areas of potential dispute” ahead of time, and if the parties cannot reach a resolution, they can present the issues to the court for resolution.[9] The draft committee notes also reflect the hope that the amendments will “reduce the frequency of claims that producing parties have over-designated responsive materials” as privileged.[10] For example, perhaps the parties can agree at the outset that privileged documents within a particular time frame may be logged in a categorical privilege log. If nothing else, an earnest discussion regarding what each party expects in terms of a privilege log can reduce the chance of surprises at the conclusion of discovery. Of course, privilege is not an issue in every case, and it is for that reason the proposed amendments afford the parties “maximum flexibility” to determine what is appropriate for their case.[11]

Conclusion

December 2025 is still relatively far in the future and whether the proposed amendments to Rules 16(b) and 26(f) are actually adopted is still subject to additional approvals, including approval by the Supreme Court.[12] Nevertheless, bear in mind that nothing in the current Federal Rules of Civil Procedure prevents the parties from implementing the more proactive approach the proposed amendments seek to achieve. If you need any ideas for your next Rule 26(f) conference, “Taming the Privilege Log Beast” is a great place to start.