How to Create a Privilege Log
In the modern courtroom, complex, high-stakes litigation often involves complex, high-stakes ediscovery. While a ruling doesn’t come down based on what’s found during the discovery process, cases can be won or lost because of the findings.
Due to this potential, parties will often negotiate prior to discovery actually beginning in an effort to lay down some ground rules for both sides. Privilege isn’t always narrowly defined, and although it’s there to help protect communication and work product between attorneys and their clients, what exactly falls under its scope can be subject to interpretation.
Creating a privilege log is a critical step in defining these parameters, ensuring that privileged documents are properly accounted for while complying with legal obligations. It provides transparency, facilitates negotiations with opposing counsel, and reduces the risk of privilege waiver.
What Is a Privilege Log?
A privilege log is a document that lists materials withheld from document production due to claims of privilege, such as attorney-client communications or work product protection. It typically includes enough information for both opposing counsel and the court to assess the validity of the privilege claim without revealing the protected content to people who don’t have privilege.
For example, if there’s an email between an employee and the company counsel in which the employee is seeking legal advice over an incident that occurred at work, that email would fall under attorney-client privilege, and be included in a privilege log.
Privilege logs are a crucial part of discovery and can help avoid discovery disputes, particularly in complex litigation, where large volumes of documents are reviewed prior to trial. Without a privilege log, courts may assume that withheld documents were improperly excluded, which can lead to extended and costly discovery disputes or sanctions.
What Is the Purpose of Creating a Privilege Log?
Creating a privilege log serves several key purposes, with the main objective being to facilitate transparency during the discovery process.
Compliance with discovery rules. Courts often require parties to justify privilege claims, and a privilege log ensures transparency. Federal and state courts have discovery rules that mandate any withheld documents must be properly logged and described without revealing privileged information.
Avoiding waiver of privilege. Properly identifying and documenting privileged materials prevents inadvertent disclosure and waiver of protections.
Preventing conflicts. A well-organized privilege log helps the opposing party or outside counsel understand privilege assertions, potentially reducing disputes. If privilege disputes arise, a well-documented log makes it easier to resolve issues without court intervention.
Court review. If privilege claims are challenged, courts may rely on the log to assess the validity of the designations. An incomplete or vague privilege log can result in adverse rulings, including court-ordered disclosure of documents.
Federal Rules Guiding Privilege Logs
While the Federal Rules of Civil Procedure (FRCP) don’t specifically outline the requirements for privilege logs, there are rules that relate to their creation. Specifically, Rule 26(b)(5) states that when a withholding party restricts information based on privilege, they must expressly claim the privilege, and describe the nature of the withheld documents in a way that enables others to assess the claim without revealing privileged content.
Failure to comply with these rules can lead to waiver of privilege, court sanctions, or orders to produce withheld documents. Additionally, courts may require more specific descriptions depending on the complexity of the case.
Case Law Related to Privilege Logs
Several court decisions highlight the best practices and pitfalls when it comes to privilege logs. Here are two of the most notable.
Ritchie Risk-Linked Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 273 F.R.D. 367 (S.D.N.Y. 2010): This case involved a dispute over the adequacy of a privilege log. The court found that the log was insufficiently detailed and ordered the party to provide additional information about the withheld documents.
Chevron Corp. v. Weinberg Group, 286 F.R.D. 95 (D.D.C. 2012): In this case, the court criticized vague and inconsistent privilege log descriptions, underscoring the need for clear justifications. The decision reinforced the importance of providing sufficient detail while avoiding excessive disclosure.
Types of Privilege Logs
There are several formats for privilege logs, each with different benefits depending on a case’s complexity and court requirements.
Traditional Privilege Log
A traditional privilege log is the most detailed and time-consuming. It lists each withheld document individually on a line-by-line basis, and typically includes fields such as the date, author(s), recipient(s), document type, privilege basis, description of the document’s subject matter, and more. Traditional privilege logs can be expensive to produce and take a lot of time to create, but they also provide the most detail. However, with the advancement of technology and the introduction of automation, traditional privilege logs have become less time-consuming.
Metadata Privilege Log
Instead of manually describing documents, a metadata privilege log leverages metadata fields, such as file name, date, sender, and recipient, to fulfill disclosure requirements. Metadata logs reduce manual work by automating most of the data entry process, however it also might require an agreement from both opposing counsel and the court. It’s also important to note that the lack of detail in metadata privilege logs can leave privilege claims open to challenges, such as when more context is needed to substantiate privilege.
Categorical Privilege Log
A categorical privilege log groups together documents that have similar characteristics under broad privilege claims. It assigns a common description of privilege to a whole group of documents, instead of doing so on an individual document level.
Categorial privilege logs are helpful for large-scale litigation that requires large and complex discovery, in an effort to reduce the burden for both sides. That said, they must be sufficiently detailed in order to withstand potential scrutiny.
Best Practices for Creating a Privilege Log
Due to the varying nature of privilege logs, there is no one-size-fits-all solution for creating them. Therefore, it’s important to keep some best practices in mind in an effort to make them as comprehensive as possible.
Negotiate Requirements Early
The content and structure of privilege logs should be discussed early in the discovery process, typically during meet and confer. Courts often encourage parties to agree on the format and level of detail ahead of time in an effort to reduce disputes later on. Early negotiations on things like naming conventions, date ranges, redactions, and more can help avoid costly rework and ensure compliance with court expectations. These requirements should be written, such as an ESI protocol or privilege review protocol, and can also be incorporated into wider ediscovery agreements.
Check Local Rules
Different jurisdictions and courts can have different privilege log requirements that must be adhered to. Although courts will often leave these issues to the parties, it’s important to pay attention to the local rules to avoid having to rework the privilege log. For example, some courts may prefer categorical logs or have clawback provisions that are not specified by other courts.
Clear and Consistent Formatting
A well-structured privilege log can go a long way in enhancing its readability, and ensuring it’s easy for all parties to follow. Using a consistent template with standardized fields enhances clarity and prevents confusion. Teams should establish internal guidelines for privilege log entries and creation to maintain consistency across cases and allow for simple editing if fields need customization.
Leverage Quality Control Strategies
Before finalizing the privilege log, conducting a quality control review is essential. Looking out for things like inconsistent privilege claims, documents that should not be withheld, formatting errors, redaction inconsistencies, missing information, and more can help ensure the privilege log is compliant. Regular quality control checks help prevent inadvertent errors, such as mistakenly identifying a document as being covered under attorney-client privilege, and ensure that privilege claims are well-supported.
Automated Privilege Logs
Thanks to modern technology, automation tools are now able to play a more significant role in the generation of privilege logs. For example, automation helps with tagging privileged documents consistently across a dataset, generating logs with relevant metadata fields, and applying privilege reasons at scale to streamline review.
How to Create a Privilege Log in Everlaw
Everlaw streamlines the privilege log process with automation, functionality, and advanced review capabilities. Users can tag privilege documents using coding categories to designate privileged materials, apply privilege reasons, and customize the log’s structure to meet court requirements, all directly in the platform.
Regarding metadata fields, users can simply drag and drop the metadata fields that should be included in the privilege log within the Everlaw platform, and rearrange them as needed. Everlaw can also load commonly configured metadata fields if it’s not clear which ones to include.
Additionally, for privilege logs that are required to include different metadata fields for documents depending on the reason they were withheld, users can easily customize metadata for each privilege rule, and for non-privileged and redacted documents. This is especially helpful for disclosure lists in the UK, but is also useful for some protocols in the US.
Everlaw’s seamless collaboration tools allow teams to work together in real time, so everyone’s feedback is incorporated. Once the privilege log is complete, users can export their privilege log with key metadata fields that are formatted to ensure an easy review process.
Conclusion
A well-prepared privilege log is essential for defensible ediscovery practices, and helps ensure compliance, reduce disputes, and protect privileged information. By understanding the requirements and best practices of creating privilege logs, legal teams can streamline the process while maintaining accuracy and efficiency.
With the right approach, privilege logs don’t have to be a burdensome task. Using technology, clear processes, and strategic planning, legal teams can create privilege logs that meet legal standards while optimizing time and resources.
