Slaying the Traditional Privilege Log

Editor’s Note: This is part of an informational series authored by a Jenner & Block partner on the changes to the Federal Rules of Civil Procedure that took effect on Dec. 1.

By David M. Greenwald, partner at Jenner & Block

One of the most burdensome and wasteful aspects of U.S. litigation is the indiscriminate use of document-by-document privilege logs. Untold millions of dollars are spent each year on a process that often yields little benefit, while spawning costly disputes.

Many courts require that a party provide,for each document withheld, not only the date of the document and the authors and recipients, but also a description of the subject matter, and an explanation why the document is privileged or immune from discovery; the explanation to include “sufficient” detail to enable the court and other parties to assess the claim. The parties often disagree over what constitutes a “sufficient” description, leading to one or more revised logs, and in many cases to frustrated judges confronting the parties’ requests forin camerareview of voluminous documents.

Preparing detailed logs for all withheld documents can be daunting. When a single email can proliferate into multiple email chains, each of which is composed of many individual communications, many of which have attachments, the number of communications and related documents withheld in a complex case can quickly reach into the thousands, comprising tens of thousands pages of material, or more. Loggingeach documentin such a case is akin to Hercules cleaning the Augean stables.

There is a better way. But first, how did we get here?

A party who withholds information based on privilege or work product has the burden of demonstrating that the material is privileged or protected. Before 1993, the federal rules did not require parties to prepare privilege logs, and parties’ objections and disclosures were not uniform. Many courts found boilerplate, “blanket” objections insufficient, but only a small number of courts required parties to provide detailed privilege “indexes.” Since the 1993 amendments to the rules, FRCP 26(b)(5) has required parties to describe the nature of the material withheld in a manner that will enable other parties to assess the merit of the claimed privilege or protection. However, the rule does not require document-by-document logs.

The Advisory Committee Notes to the 1993 amendments cautioned that detailed privilege logs “may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by category.” This cautionary note against using detailed logs was made at the dawn of the email age, long before the “explosion” of electronically stored information made such logs more complicated and expensive.

Despite the Advisory Committee’s admonition, many courts and lawyers have adopted document-by-document logs as the default setting in federal cases. The default can be overridden by thoughtful parties and courts.

Rule 26(f) requires parties to meet at the outset of a federal case to jointly develop a discovery plan. Among other things, the parties are to consider whether discovery should be conducted in phases or be limited or focused on particular issues and whether there are any privilege issues that should be addressed in the plan.

Parties can head off much of the expense of logging by adopting a plan that cuts back on the amount of data that will be logged and establishes an incremental process that will ultimately reserve the most detailed logging for those categories of documents that are actually of interest or concern to the requesting party. Discovery plans need to be tailored to the circumstances of each matter, keeping in mind that the scope of discovery as a whole, including privilege review and logging, should be proportional to the needs of the case. This requires the parties to learn their case early, be creative, and cooperate with the opposing party.

Issues the parties may wish to address:

Are there categories of responsive documents that the parties agree that they will not have toreview or log? For example, the parties may agree that there are buckets of data that they do not care about, such as documents involving counsel before a certain date or documents they can safely assume are privileged, such as communications with trial counsel after the date the lawsuit was filed. The Seventh Circuit Discovery Pilot Program Proposed Case Management Order No. 2 includes a section on “Alternative Privilege Logging Protocol” that contemplates this approach. Paragraph 1.1(b) allows parties to provide “a description of any categories of ESI and documents that the withholding party asserts are privileged or protected and the reasons for asserting that individual review of the category is not worth the time and/or expense necessary to do so.”

Are there documents that the parties agree need be reviewed for privilege but that may be described only by category, at least in the first instance? An increasing number of federal courts allow parties to log by category or otherwise relax logging requirements to avoid unnecessary burden and expense. In 2014, the New York Commercial Division adopted Rule 11-b, which expresses a preference for parties to log documents by category, and provides that, when a requesting party refuses to permit a categorical approach, the producing party, upon a showing of good cause, may apply to the court to shift costs incurred by the producing party to prepare a log, including attorneys’ fees.

After a review of a categorical log, does the requesting party want more detail regarding a subset of the categories? For those categories, the withholding party could provide an “objective” or “automated” log that includes objective metadata, such as date, authors and recipients, and subject matter fields that can be generated from a litigation support system. If necessary, a party may then request more detail with respect to a portion of the documents on the objective log, narrowing significantly the number of documents requiring detailed, hands-on logging, and focusing the effort on documents that are actually of interest to the requesting party.

The parties may also agree to a hierarchical privilege or staged review, including seeking the court’s guidance on threshold questions of privilege law relevant in a particular case. The Seventh Circuit Case Management Order outlines this process, enabling the parties to bring disputed issues to the court as they become ripe and for the parties to meet and confer to apply the rulings thereafter. The model order suggests that the parties include “a schedule for repeating this process as necessary.”

Note: In order to apply these cost-saving measures, it is important for the parties to cooperate and meet and confer early and often. Where one party bears the major burden of discovery and privilege review, it may be difficult to reach agreement on these steps. In response to appropriate motions, the court can adopt sensible, common sense proposals that are proportional to the needs of the case.

The views expressed in this column do not necessarily reflect the opinion of Big Law Business or its owners. The views expressed here are those of the author and not of Jenner & Block LLP or any of its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.