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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.

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