Extract from Fronteo’s article “Privilege Logs – Overview Look At How Technology Can Be Leveraged”
Privilege logs are required by law if a party intends to withhold information from document productions by asserting privilege. Privilege logs must be comprehensive and accurate, and given its importance, it is recommended that case teams begin planning for the privilege log well in advance of generating the log, which can ideally take place during meet-and-confers or other scheduled meetings to discuss ESI and privilege-log protocols.
Best Time to Discuss Privilege Log Requirements
Privilege logs can vary greatly in detail, scope and burden. Therefore, it is considered best practice to discuss privilege log requirements when drafting ESI (electronically stored information) protocols with opposing counsel to jointly determine what should be included and excluded from the privilege log. For example, one item that should be discussed is whether redactions need to be logged as this information could modify how privilege redactions are applied.
Although many courts tend to leave privilege log details to the parties to negotiate directly, case teams would be wise to be mindful of any local laws. For example, New York state courts prefer the use of categorical privilege logs “to reduce the time and costs associated with preparing privilege logs….and parties are encouraged to utilize any reasoned method of organizing documents that will facilitate an orderly assessment as to the appropriateness of withheld documents in the specified category.” Contrast that with the U.S. Court of Appeals for the Seventh Circuit’s Electronic Discovery Pilot Program, that prefers metadata privilege logs and advises metadata logs should provide “as much objective metadata as is reasonably available and an indication of the privilege and protection being asserted”, while also calling for “a description of any categories of ESI and documents that the withholding party asserts are privileged or protected, and the reasons for asserting that individual review of the category is not worth the time and expense necessary to do so.”
