Late last year[1], amendments to the Federal Rules of Civil Procedure took effect. The changes to Rules 26 and 16 focus on streamlining discovery, particularly regarding privilege and work product, by mandating that parties address these issues at the initial Rule 26(f) conference.
Specifically, the amendments require the parties to discuss, at the start of discovery, how they will meet Rule 26(b)(5)(A)’s requirements for asserting and describing privilege claims. The parties’ Rule 26(f) discovery plan must now include their “views and proposals on any issues about claims or privilege…,” including “the timing and method for complying with Rule 26(b)(5)(A) and any agreements the parties reach for asserting claims of privilege….,” including the format and specificity of a privilege log, if any, while empowering the courts to incorporate those agreements into Rule 16(b) scheduling orders for enforcement purposes.
Essentially, the amendments shift the practice of privilege determinations from a late-stage, after-document-discovery-closes task to an early-litigation priority. By adjusting the timeline, privilege disputes may no longer be an 11th-hour issue. The amendments aim to prioritize the themes of cooperation and transparency while making enforceable privilege protocols available to the court.
Parties should now consider including the actual procedures and contents of a log as part of the discussion early in the litigation. For example, would documents be logged by category, or on an individual entry basis? What information fields are required (to/from/cc/date/time/file type?) Would redacted documents require separate entries? A separate log? Can any categories be excluded (i.e., communications with counsel after the date of complaint)? How should parties handle inadvertently produced privileged documents? Would they secure a Rule 502(d) Non-Waiver Order?
Knowing that privilege determinations can no longer be kicked down the proverbial path, parties may wish to:
- Identify privilege-heavy sources/custodians early in the process with an eye toward ensuring readiness for the Rule 26(f) conference;
- Map categories of privileged content before collection, with special attention to materials involving in-house and outside counsel; and
- Build privilege assessment into document review plans.
Early privilege assessments and an early case management focus on privilege protocols may allow opposing counsel more time to evaluate and challenge assertions, while causing producing parties to prioritize negotiating a structured protocol and non-waiver agreements.
[1] These changes apply to all cases filed on or after Dec. 1, 2025, and may apply to pending cases “insofar as just and practicable.”