We have yet to meet a lawyer who enjoys creating privilege logs. In fact, most lawyers view creating a privilege log as a loathsome task to avoid, and spend little time thinking about how or why privilege logs should be created.
The reality is that privilege logs are necessary for litigation if you want to protect communications from privilege. A sloppy or incomplete log may result in expensive, time-consuming litigation, or it may allow an adversary to view your client’s confidences and litigation strategy, and identify weaknesses or stay steps ahead of your litigation plan.
We offer the following guidance on why you may want to create a privilege log and how to create one that will operate best in litigation.
Discovery rules generally allow discovery only of nonprivileged information.
Federal law generally requires a party to create a privilege log if the party is withholding responsive information from a discovery production on the basis of privilege. Most civil litigation—and to a large extent much criminal litigation—generally follows the construct for discovery codified in the Federal Rules of Civil Procedure (FRCP). FRPC 26(b)(1) establishes a very broad scope of discovery in federal civil litigation as follows:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Note that, right from the start, FRCP 26(b)(1) establishes a distinction between “privileged” and “nonprivileged” matters—a party may only obtain discovery of “nonprivileged matters… relevant to any party’s claim or defense.” (Emphasis added) Rule 26(b)(1) excludes from discovery privileged information.
Privilege logs identify what privileged information is being withheld from production.
Since privileged material is exempt from discovery, we could simply allow a party to produce whatever the party considered nonprivileged and withhold from production whatever the party considered privileged. Of course, such a system would require us to rely upon the parties to properly determine what was privileged, and to withhold only privileged information – and not just withholding what they wanted to withhold because it would materially help their adversary or materially harm the party’s case.
Few litigators are willing to place such trust on an opponent’s understanding of the law and willingness to be forthcoming. Instead, we live in a “trust but verify” world. FRCP 26(b)(5) requires a party to provide a list (the privilege log) of the information being withheld from a discovery production as privileged. FRCP 26(b)(5) states:
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
Federal Rule 26 does not actually mention the words “privilege log.” Instead, the term “privilege log” is used to identify the document where a party makes the express claim of privilege and the description of what is being withheld.
If a party wants to assert privilege to protect documents from production, creation of some sort of privilege log is often considered necessary. Of course, litigants also may decide to trust each other to withhold only what is privileged, without a privilege log, and avoid the burden of creating a log. If you choose to pursue this course, we strongly suggest that you memorialize the agreement, so that a change in counsel, circumstances, or relationships does not result in subsequent arguments regarding what agreement was reached.
The contents of a privilege log.
Normally a privilege log will identify: (a) basic information to describe the documents or electronically stored information withheld; and (b) a clear statement of which privileges the responding party believes cover those documents. A responding party often creates a chart—with a word processor, a spreadsheet, or litigation management software—that lists the document (Bates) number, date the document was created, the author, (all) recipients, the privileges that apply, and a description of the document that suffices to explain why the party withholding the document believes it is privileged. Sometimes it is good to include author and recipient titles or employers, and privileges are often abbreviated. A simple log may appear as follows:
|Sally Smith, CEO
|Atty-Client||Portion of email to in-house counsel seeking advice on contract negotiations redacted.|
|Sally Smith, CEO||Atty-Client,
|Memorandum from in-house counsel to CEO regarding options for litigation|
In preparing descriptions, the party withholding records as privileged should try to provide a coherent explanation of what is being withheld from discovery due to privilege and why, without actually disclosing the privileged information. There can be a fine line in providing enough details as to the claim of privilege to appease opposing counsel and ensuring the privilege is not disclosed. We find the best practice is often to prepare descriptions that clearly indicate why the privileges apply. The descriptions above identify or reiterate that the author and recipient were corporate officials or counsel, and suggest why the two privileges would be applicable.
Sometimes only part of a document should be retained as privileged. The first document on the sample privilege log, for example, may have had a series of questions, some for the CEO and some for the general counsel. The parties have indicated it has redacted those questions seeking legal advice in the document description.
The magnitude of a production may render preparation of a document-by-document description impracticable. In such circumstances, a party may want to seek guidance from a court regarding what type of privilege log the court will deem sufficient. Some courts may allow a party to use a less-detailed privilege log, and couple it with in camera or special master review of privileged materials. In other instances, categorical descriptions of withheld materials may suffice.
The best practice for logging documents.
When creating a log, we believe the best approach ordinarily is to identify those records that are responsive to discovery and then prepare them for production, with the privileged records still in place. The privileged materials should then be removed, segregated, and logged. This process leaves a clear means for identifying where privileged materials were extracted from a production, so the documents can be re-inserted if later determined not to be privileged. For this same reason, we generally advise parties not to request only “nonprivileged” records in discovery. By using such terminology in a request, a party may have rendered privileged documents non-responsive, and removed the obligation for a party responding to the discovery to produce or log such records as not produced.
Once documents are segregated, it is important to ensure that the privileged records are kept wholly separate from the nonprivileged records that will be produced. Far too often, someone inadvertently produces the wrong set of records. This often results in expensive, time-consuming litigation over collateral privilege matters that eats up a considerable amount of time and resources.
Documents commonly withheld but not logged.
When preparing a privilege log, parties generally want to include all documents or categories of documents that are being withheld as privileged. One group of documents commonly overlooked are communications between counsel and clients once litigation has commenced. We advise that you address such documents by including a category on your privilege log, to make clear that you are not producing communications between the client and counsel regarding the litigation once the litigation has commenced, on the basis of the attorney-client privilege and work-product protection. Normally parties and the court will not press for further information about this set of records, but your express statement will help ensure you have properly asserted privilege over such records.
Preparing a privilege log can be time-consuming and tedious, but it can be an important tool to protect your client’s confidences and strategy in a case. We hope that this article has been helpful, and ask you to contact us if you have any further questions or issues you believe we should have addressed.
About the Authors
Michael Downey is the founding member and Paige Tungate is a lawyer at Downey Law Group LLC, a St. Louis law firm devoted to legal ethics and the law of lawyering. Michael is also a past chair of the Law Practice Division. You may reach them at 314.961.6644 or Info@DowneyLawGroup.com.