The Federal Rules of Civil Procedure and many corresponding state civil-procedure rules require parties withholding privileged documents to prepare a privilege log identifying the withheld documents and the asserted privilege. But many lawyers either ignore these requirements or construct privilege logs that fail their essential purpose.
Many reasons exist for this privilege-log apathy. Privilege logs require tedious diligence and cause lawyers to procrastinate in their preparation. Lawyers don’t insist on privilege logs from their adversaries for fear their adversaries will respond in kind. And some lawyers decide that legal strategy calls for keeping privilege claims intentionally vague and provide a general privilege log with no specifics.
The days of privilege log apathy are coming to an end. Courts are increasingly exhibiting more scrutiny of privilege logs and imposing sanctions, including the significant sanction of waiver, for insufficient privilege log descriptions. The privilege-log rule, however, is intentionally vague and simply requires parties to “describe the nature” of the putatively privileged document in a manner that “will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). But several courts, through common law decisions or via local rules, now impose strict requirements on the composition of privilege logs.
In my article, Ignoring Privilege Log Obligations May Prove Costly, published by the Inside Counsel magazine and website, I explore the necessity of privilege logs, the various rules and requirements that some courts now impose, and outline the adverse consequences for failing to comply with these requirements. I end the article with a list of practical tips that should aid lawyers in preventing privilege log mishaps and privilege waiver. You may access the article at this link. My thanks to Inside Counsel for publishing the article and allowing access through this post.