Taming the Privilege Log Beast

There are few things more dreaded in discovery than the time-consuming, tedious, onerous, beastly privilege log – especially in complex litigation matters involving thousands of pages of documents. These logs, however, are a critical component of the E-Discovery process that requires careful attention to detail in planning, analysis, and preparation. In this blog post, we will explain what a privilege log is, discuss the various types of privilege logs, recommend pre-privilege review strategies, and address post-submission concerns.

Privilege Reviews

Under Rule 26(b) of the Federal Rules of Civil Procedure, any party may obtain discovery regarding “any nonprivileged information that is relevant” to a legal claim or defense. A detailed document review is required to distinguish between relevant and irrelevant information, as well as, to provide an opportunity to protect privileged attorney-client communications and work product. Attorney-client privilege is defined as any communication made between privileged persons in confidence for the purpose of seeking, obtaining, or providing legal assistance to a client. Designating privileged documents is a labor and time intensive process, and adding to that burden is the requirement of creating and producing a log of these documents so designated to opposing counsel.

Privilege Logs

The Federal Rules do not use the term “log” or define any privilege logging procedures. Rule 26(b)(5)(A) merely requires the withholding party to “expressly make the claim” of privilege and “describe the nature” of the withheld documents “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Without clearly defined parameters, three types of privilege logs have evolved.

Traditional Privilege Log

These types of privilege logs contain an individualized description of the privilege assertion of each document and courts universally accept them. The log typically contains the following information for each document:

• Author

• Recipients
• Dates
• Subject Matter
• Other information sufficient for the other party to assess the privilege claim

This type of log is generally time-consuming and expensive, particularly in matters involving large amounts of documents.

Metadata Privilege Log

Another option is negotiating with opposing counsel to exchange predetermined metadata fields for privileged documents. The advantages of this type of log are the relative speed to prepare and related cost savings. The disadvantages are that documents may lack enough metadata to back up a claim of privilege, and some title or subject fields may contain privileged information that would need to be reviewed. Adding a provision to an Electronically Stored Information (ESI) agreement or Privileged Information Order for supplementation of additional information, upon reasonable requests by the receiving party, is a way to avoid these types of issues.

Categorical Privilege Logs

In this type of log, documents are grouped together based on similar asserted privilege bases. Each category consists of one entry with a single description that is applied to all the privileged documents in that category. These logs can be structured by subject matter (such as contract drafts) or communication type (such as emails between the client and counsel for litigation matters). It should be noted that this type of log can be more time consuming to prepare than metadata logs, and it can be difficult to categorize certain types of unique privilege issues.

Prepare, Prepare, Prepare

It can’t be emphasized more strongly that early and detailed preparation is essential to make the privilege log process go quickly and smoothly. At a bare minimum, you should consider the following:

Pre-Review Planning

Even before you begin the privilege review, it is helpful to consider the following things:

• Local Court Rules: Check the local court rules to confirm that you are providing the correct information. This will prevent going back and supplementing or editing the privilege log.

• Keywords/Search Terms: Client and counsel should create a detailed list of potentially privileged keywords and/or search terms to make privilege determinations easier.
• Privilege Description Tags: Counsel should develop a list of privilege topic and subject matter descriptions so reviewers will have an easier time selecting the correct topic or subject matter description.  This will help ensure the privilege log is consistent.

Meet and Confer with Opposing Counsel

With the lack of guidance on privilege logs, it is common for parties to meet and confer to come to a mutual decision on privilege log particulars, either through an ESI agreement and/or Privileged Information Order. This process ensures that each party will receive the information needed to properly assess a privilege claim. This collaborative decision also likely prevents many lengthy and costly discovery disputes down the road. The parties should consider:

• Type of Privilege Log: The parties should negotiate which type of privilege log to use – the traditional privilege log, the metadata privilege log, or the categorical log.

• Required Fields for the Privilege Log: Agreement should be reached on which fields to include in a privilege log. At a minimum, the log should contain the document date, the parties involved, the privilege claim, and a brief description of the privileged content.
• Types of Privilege: In addition to attorney-client privilege and work product privilege, it may be helpful to discuss other types of privilege that are applicable in certain jurisdictions. Examples include:

• Common Interest Privilege
• Doctor-Patient Privilege
• Accountant-Client Privilege
• Priest-Penitent Privilege

• Privilege Exclusions: The parties may also consider excluding privileged documents that were created after the filing of the complaint.
• Timing of Production: The parties should discuss the timing of the privilege log after the final production has been served. It can be inefficient to have a rolling privilege log as there may be corrections, omissions, or documents that need to be clawed back. It is standard practice for parties to agree to thirty (30) to sixty (60) days for privilege log production. Shorter or longer production deadlines can be negotiated.

During and After the Privilege Review

Even with the most careful planning, document reviews evolve and change, and it is important to perform quality control of the review early and consistently so that any workflows may be altered to ensure correct information is being captured for the privilege log. Also, looking over reviewers’ work to make sure they are using the correct privilege descriptions reduces the chance that re-review of the documents will be needed.

Most E-Discovery platforms now make it easy to create and populate privilege log spreadsheets with the appropriate metadata fields and review tags. Once this workflow is established, it is also essential to perform quality control of the privilege log to correct any errors or inconsistencies.

Post-Privilege Log Submission Issues

In the event of an inadvertent disclosure of privileged information, it is basically a necessity now to include a Federal Rule of Evidence Rule 502(d) provision in any ESI Agreement and/or Privileged Information Order. This provision protects against waiver of privilege where the disclosure was “inadvertent”; “the holder of privilege took reasonable steps to prevent disclosure”; and “the holder promptly took reasonable steps to rectify the error.” Fed. R. Evid. 502(b).

Of course, the rule itself does not define when a disclosure is inadvertent, what a reasonable step to prevent disclosure is, or what steps are reasonable to cure the disclosure. As a result, it is recommended that the parties negotiate a “clawback” agreement should privileged information be inadvertently disclosed. These agreements allow a party claiming privilege to give the receiving party notice of the claim and the basis for it. This notice must be sufficiently specific to allow the receiving party enough information to assess the claim of privilege. After notice, the receiving party “must promptly return, sequester, or destroy the specified information and any copies.” Fed. R. Civ. P. 26(b)(5)(B).

Conclusion

By following the recommendations and suggestions above, the dreaded privilege log will no longer seem like an untamable foe. Early case development strategy, utilization of appropriate technological tools, and conferring with opposing counsel allows for mutual understanding of expectations, lowers costs, and prevents unnecessary discovery disputes.

DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.