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September 22, 2014

The End of the Privilege Log as We Know It?

Anyone who has ever worked on a privilege log has probably suspected that there must be a better way to deal with privilege. There is … and it is finally gaining traction.

Privilege logs may be one of the most wasteful parts of discovery.  Costs are often high, as attorneys carefully consider for each privileged document what is the “right” description that is detailed enough to avoid challenge and yet does not betray the privileged information itself.  The end product is an expensive, labor-intensive document that is often of little use to the other side.  In many cases, the receiving party may tuck the log away “just in case” an issue arises, but never actually review it.

Categorical privilege logs are an efficient and sensible alternative to traditional line-by-line privilege logs.  They reflect information about privileged documents that is readily available (e.g., date, sender, recipient, file type), type of privilege (attorney-client communication or work product), and subject category (e.g., relating to the instant litigation).  These logs may assign many documents to a single subject category.  Not only are categorical logs more efficient to create, but they may also help parties and courts resolve privilege disputes efficiently, by isolating and addressing similar documents.

As is typical of many e-discovery issues, technology changed our world, which created a problem, while the solution has trailed far behind.  E-discovery thought leaders have suggested –and at times successfully used –categorical privilege logs.  Yet, they must face the challenges of old rules of practice and folks who will insist “we’ve always done things the old way” and who don’t like change.  Fed. R. Civ. Pro. 26 (b)(5) requires a producing party that withholds a privileged document to describe the document so as to “enable other parties to assess the claim.”  However, the 1993 Advisory Committee notes to the Rule 26 also state that detailed privilege logs “may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.”  Over the years, we have seen courts and parties gradually begin to endorse categorical privilege logs, with a few notable highlights:

1996: The Southern District of New York acknowledged categorical logs may be permitted when “(a) a document-by-document listing would be unduly burdensome and (b) the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing whether the privilege claim is well grounded.” SEC v. Thrasher, No. 92 CIV. 6987 (JFK), 1996 WL 125661 (S.D.N.Y. Mar. 20, 1996).

2004: The Sedona Conference publishes The Sedona Principles, which recommend that privilege logs should initially classify documents into categories or groups of withheld documents.

2010: Hon. John Facciola and Jonathan Redgrave developed the “Facciola-Redgrave Framework,” in which parties should use categorical indices of privileged documents, taking into account principles of proportionality and making determinations through incremental cooperation between the parties.  Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework,” 4 Fed. Ct. L. Rev. 19 (2010)

2011: The Southern and Eastern Districts of New York update their Local Rules to include Rule 22.  Rule 22(c) states when the same privilege claim applies to multiple documents, “it is presumptively proper to provide information required by this rule by group or category.”  The Committee Note states that parties should follow principles of The Sedona Conference Proclamation and work together to deal with privilege logs efficiently.

2012: Delaware Court of Chancery updated its Guidelines for Practitioners to include Guidelines for the Collection and Review of Documents in Discovery.  The Guidelines include a suggestion that parties may agree to log documents by category rather than on a document-by-document basis.

September 2, 2014: New York adopts Rule 11-b in its Uniform Rules for the Supreme and County Courts (Commercial Division Rule 11 NYCRR § 202.70(g)).  Rule 11-b establishes a preference for use of “categorical designations” instead of document-by-document privilege logs.

The recent change to New York’s Commercial Rules has generated much buzz.  While categorical logs are not new, it does seem that their acceptance is now truly on the rise.  Rule 11-b may represent a tipping point.

In most cases, burdens of document-by-document logging outweigh probative value of the logs.  Ideally, parties should cooperate as to what categories will be used, and also agree on other ways to decrease burdens of privilege review.  Where cooperation is not possible and courts must resolve disputes, it seems that categorical logs are on their way to becoming an accepted standard.

Tara Emory, PMP
Tara Emory, PMP
Tara Emory advises organizations and law firms on e-Discovery and information governance programs. Tara counsels clients on data management and compliance, policies, records management technology, and defensible deletion. In litigation, she is an expert on search methodologies, data preservation and collection approaches, discovery protocols, and strategies for resolving discovery issues with litigation adversaries, government regulators, and the courts. Above all, Tara seeks to solve her clients’ unique data problems in ways that reflect a best fit for each client and matter.