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March 23, 2016

Solving the Privilege Conundrum

Privilege logging is one of the most despised elements of discovery practice. A few years ago, civil discovery expert Kevin Brady concisely summarized why courts, counsel, and clients universally detest privilege logging:

Judges don’t want to hear about the disputes or do any in camera review. Partners do not want to oversee the work on the log and associates don’t want to be bothered with such mundane tasks. Clients don’t want to pay significant amounts of money for something that poses only risk and no reward.

Despite such understandable contempt, the Federal Rules of Civil Procedure (FRCP) still require a privilege log, i.e., a vehicle to expressly assert a privilege claim and provide key details regarding the claim so it can be substantiated by an adversary. While this requirement must be satisfied, there is no reason why it cannot be simplified. Indeed, with logs now being long, unwieldy, expensive, and not very useful, there is a growing demand to streamline them.

The Role of Cooperation

The surest method for doing so is by seeking agreements with litigation adversaries. Such a procedure is specifically contemplated by the rules. FRCP 26(f) expressly requires parties to develop a “discovery plan” that addresses “any issues about claims of privilege.” At the FRCP 26(f) conference, counsel could explore possible limitations on privilege logs such as: (1) only identifying the last-in-time email in a particular string; (2) preparing a privilege log by category; or (3) eliminating the log altogether.

If the lawyers are unable to reach an agreement, they should seek judicial intervention to help fashion an acceptable protocol. Regardless of the proposed method, a party who proposes to reasonably narrow the scope of its log may very well receive judicial approval. This is because courts are generally watchful for opportunities to decrease privilege burdens and thereby enable the “just, speedy, and inexpensive determination” of a particular case.

Easing Identification Requirements

Whether an agreement can be reached with an adversary or judicial relief is needed, counsel must determine what should be identified on a privilege log. Fortunately, counsel may not need to share details regarding every byte of data that is privileged. The advisory committee note to FRCP 26(b)(5) confirms as much. Revealing specific details regarding the who, what, when, and why of a privileged discussion “may be appropriate if only a few items are withheld.” On the other hand, it “may be unduly burdensome” to require such detail if many documents are claimed as privileged.

Keeping in mind the objective of simplification, counsel should follow the direction of the committee note and prepare a log that describes documents “by categories.” As we discussed some time ago, such an approach has been adopted by various courts and encouraged by various eDiscovery cognoscenti.

Another method for achieving simplification is to identify the last-in-time message from an email string on the log. Such a logging method has many benefits given that it can eliminate a substantial amount of work and documentation that would be required if all messages in the string were described. While some courts have expressed concerns with this approach, those concerns will likely be addressed if agreements can be reached with litigation adversaries. If such a task is not possible, counsel should then do as the committee note suggests and seek a protective order. Demonstrating the undue burden of identifying every message in an email string will likely turn on the reasonableness of counsel’s logging approach, the character of the discussions with opposing counsel, and the credibility that counsel has established with the court.

The foregoing represents only a couple of the steps that counsel can take to simplify its privilege review process while effectively protecting privilege claims in discovery. While these suggestions may not be an elixir for all privilege problems, they do provide cost effective logging methods that clients now expect in the age of eDiscovery.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.