Privilege logs vital to protect confidential ESI production

What happens when a document that you know to be privileged, such as under the attorney-client or work product privileges, is requested for production as part of discovery in a litigation? Documents identified as privileged should not be turned over to the opposition. But there’s more. They cannot be ignored in terms of a production request.   Privileged documents must be identified inside a privilege log that is produced in a timely manner to the other side. 

This article is based on “Building a Privilege Log,” which is a subject covered by the Certified E-Discovery Specialist (CEDS) Exam Preparation Manual, and a topic treated in the CEDS certification examination.

What is a privilege log and when should it be created?

Privilege logs are a vital step in the stages of document production.  Required by Rule 26(b)(5) of the Federal Rules of Civil Procedure, a privilege log is provided to specifically identify documents that will be withheld from production on some basis of privilege.  Generally, a privilege log will include information regarding the author or sender and recipient of the document, the document type (such as an email, memorandum), a high-level description of the subject matter of the document, the nature of the privilege asserted (attorney-client, work product, joint defense), along with a description of why that specific type of privilege is applicable to the document.  These logs are almost always created after a document request has been made since you do not want to unnecessarily provide additional information to the opposition. 

Who should create the privilege log?

Privilege logs are generally created by members of the litigation review team, as they are already familiar with the facts of the case. These are the key players in the litigation and the lawyers involved in the underlying matter. 

Potential privilege log problems

There are a few common points of contention revolving around privilege logs.  For example, Matthew Collins, of the Pittsburgh firm Strassburger McKenna Gutnick & Gefsky, said the level of specific detail required is often a point of conflict.

According to Collins, including too much information effectively nulls the entire purpose of the log, while offering too little information will not provide the other side with enough to determine what the privileged documents contain.

Additionally, there are often issues relating to “email strings.” Email strings are emails that are sent to various parties, who then sent their email reply or forward onto additional parties creating multiple emails with additional comments but still containing content of the original email. 

Sometimes, said Collins, there can be “unwitting admissions” inside a privilege log.  For instance, if documents are identified as work product inside the log, but were produced before the litigation hold was firmly in place, that means that either  the document is not privileged or the litigation hold should have been put into place at an earlier time. 

Trevor Hoffmann, an attorney at the New York office of Haynes and Boone, said, “The biggest challenge is time, since there is such a large volume of documents in large suits.”  

“When deadlines hit, it is often difficult to make sure that everything privileged is logged and not produced,” he added.

More information regarding the key aspects of building a privilege log is available to CEDS certification candidates who receive the full CEDS Exam Preparation Manual as part of the exam fee. For more information on the certification exam that may be taken at nearly 600 ACEDS-Kryterion Testing Centers worldwide, visit aceds.org/certification.

Additional reporting by Zachary Parkins, ACEDS staff.