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Practice Tip Sheet
Preparing Privilege Logs
Did you know that the phrase “privilege log” is nowhere to be found in the Federal Rules of Civil Procedure?
A privilege log is a procedural convention, commonly accepted by courts, that serves as a handy way to comply with statutes requiring parties to substantiate their claims of privilege as the ground for withholding from production specific documents or categories of documents requested in discovery.
In federal court, the basis for preparing a privilege log is Fed. R. Civ. P. 26 (b)(5)(A), stating that when a party withholds discoverable information on the basis of privilege or work product protection, the party must describe the documents or communications being withheld to enable everyone to evaluate the privilege claim, without revealing the actual privileged information.
See? No reference to “privilege log” per se; however logs are the most common means used by parties and required by judges to identify the privileged materials being withheld from production.
In California, the basis for preparing a privilege log is Code Civ. Proc. §2031.240(b), stating that a party objecting to any request for production on the grounds of privilege or work product protection must identify with particularity any document or thing for which the claim of privilege or protection is being made, and provide enough information for other parties to evaluate the privilege claim “including, if necessary, a privilege log.”
Of course, even if federal or other state statutes don’t specifically mention privilege logs, local rules or judges’ standing orders may, and as always, need to be consulted.
What does a typical privilege log look like? Logs are usually prepared in table or spreadsheet format, and list each individual document or item being withheld. Parties usually include either a Bates number or document ID number, the document date, the author, the recipients, ccs, some sort of description, and the basis of the privilege, whether attorney-client privilege or work product protection (or other).
Attorney preferences vary as to how specific to be in describing the document. After all, the goal is to justify withholding on the basis of privilege, not to disclose the document’s contents or to give up any case strategy. To achieve this, many offices devise a short list of standard descriptors which can apply to all the categories of privileged documents in the case, from which paralegals or attorneys drafting the log can choose. If done in Excel, a drop down list can even be created. Examples might be, “privileged communication regarding instant litigation,” or “privileged communication regarding draft agreement.”
Attachments. Some attorneys prefer to log attachments separately, while other attorneys just log the letter or email and reference an attachment (perhaps briefly identified) in the description portion of the log.
Email strings or chains pose another pickle. Attorney preferences – and the courts – differ as to whether it is sufficient to log the topmost email, or whether each email in the string is to be individually logged – which is quite a chore!
ESI. Of course in these days of electronically stored information (ESI), where the volume of data potentially relevant to a given lawsuit has increased exponentially, the volume of privileged or protected data has increased as well. This can make drafting a privilege log quite an onerous task. I’ve seen (and helped draft) privilege logs that are hundreds of pages long!
If it’s not even in the statute, why is this important? Motions to compel production of withheld documents can, and do, result when the requesting party can find some hole to poke in a claim of privilege. Even more concerning is the possibility of sanctions, or the waiver of privilege, if a privilege log isn’t prepared or the judge deems the log deficient.
The upshot? When drafting a privilege log, it is essential to get detailed instructions from your supervising attorney. There are a lot of judgment calls to be made which will require careful consideration. I suggest you prepare a draft log template and get the format approved before you begin. Ask whether your attorney wants a detailed description of each document, or a series of more general descriptors from which to select. Ask how to log privileged attachments and privileged email strings. The goal is to protect privileged information while meeting the statutory requirements regarding identifying documents withheld due to privilege.
©2015 Drescher ProParalegal. All rights reserved.
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