This time of year, everything tends to be more scary and spooky, but one thing doesn’t have to be – creating a defensible privilege log! Creating a privilege log can be one of the most time consuming, labor intensive and expensive parts of litigation. The last thing you want is to have to spend additional time and money defending or re-doing work on your privilege log.
Federal Rule of Civil Procedure 26(b)(5) only requires that the party withholding material based on a claim of privilege “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Although this seems simple enough, in practice this can actually be more trick than treat.
Here are some things to keep in mind when creating a privilege log to help make it more defensible and less likely to lead to additional time and money making extensive revisions to the privilege log entries.
- Know your audience – You just know some opponents will do anything they can to drive up your expenses. Similarly, some courts have little patience for privilege challenges, while others bring in a Special Master who may seem to welcome such disputes. A privilege log produced in a run of the mill contract dispute may predictably receive fewer challenges than the same log in a hyper-litigated trademark infringement suit, where the receiving party is seeking to deflect and delay. Using an approach to privilege calibrated to the posture of the matter and nature of the litigants could save a lot of time and expense– either in adopting a more streamlined privilege process, or in engaging in more up-front work in anticipation of heightened scrutiny. For example, in a hotly contested matter, running a quality check for entries with more than 10 recipients or missing an attorney in the sender or recipient fields could reduce the amount of entries in controversy later.
- Know your modifications – Negotiating with opposing counsel to limit the documents requiring full log entries can save a lot of time, expense, and headache down the road. An agreement to not log certain categories of documents, such as (1)non-responsive privileged family members, (2) communications dated after the lawsuit was filed, and (3) communications with outside counsel are a few examples. Getting agreement as to the fields that will be present on the log and the how to present the log entry up front can also save time and money. Additionally, use of alternative privilege logs, such as a metadata logs and categorical logs should be considered.
- Know your privilege claims – The work product privilege is narrow and only applies to documents or tangible things prepared in anticipation of litigation by or for a party, or by his representative (Fed. R. Civ. P. 26(b)(3)). The attorney client privilege is generally broader and is less likely to elicit a challenge and is often appropriate to use in conjunction with the work product privilege.
- Know your privileged actors – Communication with your client is essential to understanding roles of employees with multiple job functions. You need to understand when lawyers are acting as an attorney and when they are acting as a business person. You may also need to consult with your client regarding distribution list recipients and group mailboxes.
- Know your obligations – Make sure you are preserving documents at the same time as you claim work product protection – i.e., when litigation is reasonably anticipated — or have a good explanation for the discrepancy. At the same time, make sure you don’t agree to ESI search requirements that will unnecessarily inflate your logging obligations, such as an agreement to log all documents that are responsive to search terms without regard to responsiveness.
Although nothing can completely eliminate the horror of creating or defending a privilege log, the above tips can help make it less painful.