Categorical Privilege Logs Best Practices
Litigation comes with many challenges, including handling document discovery in a cost-efficient and timely manner. Litigators often face difficulty in determining which documents should be held back from litigation, based on privileged categories. When a party chooses to withhold information from a discovery production on the basis of privilege, the law requires the withholding party to claim privilege and describe the nature of the privileged information in the form of a privilege log.
Unfortunately, the process of identifying this information within documents and logging it properly is cumbersome and time-consuming. Parties may mutually agree that a privilege log isn’t necessary and avoid the burden, but that requires consideration about whether the other party can be trusted to withhold the sensitive information.
If both parties determine that a privilege log is the best route, both parties need to remember that they have control over how the privilege logs are disclosed. Most discovery rules don’t require monolithic privilege logs.
Burdens of Traditional Privilege Logs
Privilege logs typically have information like the date, the parties involved in the document, a summary of the withheld material, and the privilege asserted to meet the Federal Rule of the Civil Procedure 26(b)(5)(A). Parties can agree to different formats, however, to reduce the burden while obtaining necessary information. These include:
Metadata privilege log: A log that contains the metadata available from electronic documents, which eliminates the need to prepare detailed summaries for each document. This type of log uses file names, email subjects, and other data to express information.
Categorical privilege log: A log that contains information in specific categories, rather than individual documents.
Custom privilege log: A log in which all parties agree to specific information that will be included for each document withheld, but not all of the standard information.
Using alternatives to traditional logs can reduce the time and expense of creating traditional privilege logs. When both parties agree to alternative logs, however, both parties must define the agreement in writing to avoid disputes during the litigation process.
Categorical Privilege and the Courts
Categorical privilege logs provide both parties with a streamlined approach to claiming privileges that have been traditionally logged by individual documents. These logs are more efficient and appropriate for privilege logs without the considerable expense and delays of producing logs by individual documents.
Federal courts also routinely authorize the use of categorical logs, especially in cases with high volumes of paperwork and documentation that may or may not fall into the privileged category. The authorization to use categorical logs includes nonparties as well.
Always Provide Vital Details About Withheld Information
It’s crucial that logs satisfy the Federal Rule of Civil Procedure 26(b)(1). They must contain information about the nature of the documents and communications to give the opposing parties to evaluate claims of privilege. These categorical logs should have enough details to withstand scrutiny and courts reserve the right to reject logs that are vague.
Generally, a categorical privilege log satisfies the court if it discloses the people involved in the communications, the applicable dates, the document types, and the claim to privilege. If the details are sufficient, the court can determine if the party has a legitimate claim to privilege.
The important detail to consider with these details is that privilege can be used to conceal non-privileged documents. Courts need to be confident that the withheld information is truly privileged based on the granular details describing the document.
Proportionality Standards Apply to Privilege Logs
An important consideration in accepting categorical logs is whether proportionality standards apply. This refers to determining whether categorical privilege logs are necessary to reduce the burden of preparing documents in litigation with high volumes of documents.
If logging obligations are considered disproportionately burdensome, the court may invoke proportionality. For example, the court may not require a party to memorialize the representational history of every law firm in a categorical log, based on the complexities of the litigation.
Log Alternatives Reduce Burdens
Preparing privilege logs is a heavy burden for litigators, especially in complex cases with high volumes of documents. The Federal Civil Rules Advisory Committee is considering whether the Federal Rule of Civil Procedure 26(b)(5) should be amended to reduce the burdens of preparing logs in general.
While there hasn’t been a determination on this front, litigators can reduce this burden in the interim by using log alternatives like metadata, sample, and categorical logs.
A privilege log is one of the most laborious and time-consuming tasks in litigation. This task is necessary for e-discovery, however, and may come up during client cases.
Essentially, these logs are detailed records of information that a party is choosing to withhold from discovery with a privilege claim. Due to its nature, a privilege log must have sufficient details that allow the court to assess the privilege claim without revealing the specific privileged information it protects.
Here are some best practices to relieve the burden:
Determine Specific Court Requirements
Before compiling your information, it’s important to check the court’s specific requirements. Otherwise, attorneys may need to return to the log and revise it after completion, which adds to the time and expense.
These logs can be complex in revealing enough information to assert privilege without revealing the protected information. It’s vital to be specific and only withhold information that is justified under privilege and check to ensure that all the vital information is included.
Organization is Key
The burden of this task doesn’t just fall on attorneys, but for all parties. Logs should be organized and categorized in a logical, easy-to-read manner, such as by date, title, or subject.
Use Automation Software
Legal management software offers numerous benefits for law firm processes, including compiling and managing privilege logs. These purpose-built software solutions offer tools to analyze, organize, and compile documents.