Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

FeaturesCybersecurity Law & StrategyCybersecurityE-DiscoveryTechnology Media and Telecom

Privilege Logs: Strategy, Best Practices and Practical Advice

By Bansri McCarthy, Leonard Impagliazzo and Tara Lawler
January 01, 2023

Gone are the days when a lawyer would print out documents and prepare a privilege log by drafting individual descriptions — one privileged document at a time. Leveraging the latest technological tools, today's e-data lawyers are as sophisticated and efficient in preparing privilege logs as they are in all other phases of discovery. Privilege-log planning should begin well before the first privileged document is logged. In fact, privilege-log strategy should be considered at the outset of a matter and included in early meet-and-confers with opposing counsel about the discovery process. In this article, we provide an overview of the different types of privilege logs; lay out best practices for negotiating ESI or privilege-log protocols; discuss what to do if an ESI or privilege-log protocol has not been entered in a matter; consider practical uses of technology to generate privilege logs; and address the inadvertent production of a privileged document.

|

Privilege Log Types

Not all privilege logs are identical; they can vary widely in detail, scope and burden. The Federal Rules of Civil Procedure do not use the term "log" or otherwise spell out logging procedures. Instead, Rule 26(b)(5)(A)(ii) requires a withholding party to "describe the nature" of withheld documents "in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." In the absence of clearly defined requirements, three types of privilege logs have emerged.

Traditional privilege logs contain an individualized description for the privilege asserted on each document and are universally accepted by courts. Technology can be leveraged to extract metadata for the objective fields in a traditional privilege log, but these logs require distinct descriptions for each logged document. While the distinct descriptions allow the receiving party to evaluate the privilege basis for each document, traditional privilege logs are burdensome to prepare in both time and expense, particularly in matters with large volumes of privileged documents. The burden of preparing a traditional log is not always proportional to the need, as not all withheld documents require privilege descriptions to adequately show the reason for the withholding. In addition to traditional logs, there are two alternative types of privilege logs. Metadata privilege logs are the most expedient and inexpensive of privilege logs, comprising an export of agreed-upon metadata that is available for logged documents in the review database.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Top 5 Strategies for Managing the End-of-Year Collections Frenzy Image

End of year collections are crucial for law firms because they allow them to maximize their revenue for the year, impacting profitability, partner distributions and bonus calculations by ensuring outstanding invoices are paid before the year closes, which is especially important for meeting financial targets and managing cash flow throughout the firm.

The Self-Service Buyer Is On the Rise Image

Law firms and companies in the professional services space must recognize that clients are conducting extensive online research before making contact. Prospective buyers are no longer waiting for meetings with partners or business development professionals to understand the firm's offerings. Instead, they are seeking out information on their own, and they want to do it quickly and efficiently.

Should Large Law Firms Penalize RTO Rebels or Explore Alternatives? Image

Through a balanced approach that combines incentives with accountability, firms can navigate the complexities of returning to the office while maintaining productivity and morale.

Sink or Swim: The Evolving State of Law Firm Administrative Support Image

The paradigm of legal administrative support within law firms has undergone a remarkable transformation over the last decade. But this begs the question: are the changes to administrative support successful, and do law firms feel they are sufficiently prepared to meet future business needs?

Tax Treatment of Judgments and Settlements Image

Counsel should include in its analysis of a case the taxability of the anticipated and sought after damages as the tax effect could be substantial.