Philip Favro, Innovative Driven: What Litigants Should Know About New Court Decisions on Categorical Privilege Logs

Extract from Philip Favro’s article “What Litigants Should Know About New Court Decisions on Categorical Privilege Logs”

Parties are turning to privilege log alternatives like metadata logs, categorical logs, and logs reflecting samples of privileged documents to ameliorate the burdens of preparing document by document logs. As they do so, courts have in turn issued several recent opinions that provide guidance for how parties should handle the development of these logs, particularly categorical logs.

That guidance includes the following four points: (1) Courts routinely approve categorical logs; (2) parties may consider reaching agreements with adversaries regarding log categories; (3) log categories should provide key details regarding withheld information; and (4) Federal Rule of Civil Procedure (FRCP) 26(b)(1) proportionality standards apply to privilege logs.

Courts Routinely Approve Categorical Privilege Logs

Categorical privilege logs provide parties with a streamlined method for claiming the privilege over communications they have traditionally logged document by document. As the court in Maxus Energy Corp. v. YPF (D.Del. 8/16/21) recently observed, categorical logs are “an efficient and appropriate accommodation to allow for the production of meaningful privilege logs without undertaking the huge expense and significant delay arising from the production of a document-by-document log.”

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