Extract from Justin Smith’s article “How to Create a Privilege Log”
In the modern courtroom, complex, high-stakes litigation often involves complex, high-stakes ediscovery. While a ruling doesn’t come down based on what’s found during the discovery process, cases can be won or lost because of the findings.
Due to this potential, parties will often negotiate prior to discovery actually beginning in an effort to lay down some ground rules for both sides. Privilege isn’t always narrowly defined, and although it’s there to help protect communication and work product between attorneys and their clients, what exactly falls under its scope can be subject to interpretation.
Creating a privilege log is a critical step in defining these parameters, ensuring that privileged documents are properly accounted for while complying with legal obligations. It provides transparency, facilitates negotiations with opposing counsel, and reduces the risk of privilege waiver.
