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What is a Privilege Log in Litigation?

A Privilege Log is a document that describes documents or other items that have been withheld in a civil lawsuit under the claim that they contain “privileged” information.

These documents and records are considered privileged from disclosure due to attorney-client privilege, work product doctrine, or joint defense doctrine.

By law, any party who withholds information under the grounds of privilege must expressly make this claim. The party must also describe the nature of the documents, communications, or tangible items that have not been disclosed. Generating these descriptions can be challenging since they have to be clear and detailed without revealing any privileged information. In addition, one must also know how to create discretionary redactions. It can be valuable to work with professionals who know the needs of the courts and regulating agencies.

What is a Privilege Log in Discovery?

In the discovery phase of litigation, a privilege log is an essential part of the process. For example, under-asserting privilege can result in giving up privilege for documents. In contrast, over-asserting privilege can result in a lot of time spent doing camera reviews or an expensive and time-consuming second review of the whole documentation process.

A complete privilege log and description of the document allows your team to stay organized and meet the obligations for each document containing privileged information. This allows the opposing party to properly assess each claim that is made.

Privilege Log Federal Rules

In the United States, federal law requires that a party create a privilege log if the party is withholding any information from discovery production on the basis of privilege.

Most civil law procedures, and many criminal law procedures, follow the construct for discovery which has been codified in the Federal Rules of Civil Procedure (FRCP).

FRCP article 26 (b) (1) provides for a broad and all-encompassing scope of discovery in federal civil litigation.

Section 26 (b) (5) (A) covers (A) Information Withheld – when a party withholds information which is otherwise made discoverable by claiming that the information is privileged or subject to protection as trial – preparation material. The party then must expressly claim and also describe the nature of the documents, communications, or tangible elements without revealing information which is privileged or protected.

As privileged information is hidden from being discovered, a party is allowed to produce whatever they consider nonprivileged. A privilege log is necessary if one party wishes to assert privilege  to protect documents from production, creation, or any kind of privilege.

The litigants may also decide to trust each other to withhold only privileged information without a privilege log. In this situation, it is possible to avoid the burden of creating a log. If the party chooses to pursue this course, it is advisable to memorialize the agreement.

When dealing with privileged information, there are several options for people involved in the litigation. Choosing which avenue will depend on the details of a particular case.

Categorical Privilege Log

A categorical privilege log provides each party with a method that is streamlined to claim privilege over the communications that have been logged by the document.

Recently, more courts have issued opinions and provided guidance about how parties should handle the development and categorization of a privilege log. This includes guidance on things like metadata logs, categorical logs, and samples of what a privilege log is.

Categorical logs are defined as “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.” (ACEDS)

Federal courts regularly authorize the use of categorical logs, especially where there are large volumes of documentation.

Each log category should offer key information about the withheld information. Categorical logs must offer sufficient data as well as be able to reduce the burden of paperwork for the court.

Privilege Logs in Litigation

Preparing a privilege log can be time-consuming. However, it’s essential in litigation, and since it involves sensitive information, it should be approached with care. It’s an important tool in the protection of client privacy and requires a strategy in defending or prosecuting lawsuits or other litigation.

When preparing litigation, it is essential to understand what a privilege log is in order to protect private or sensitive information related to, but not pertinent to, a given lawsuit or instance of litigation. Should you seek more detailed information or require further answers to your specific questions, please do contact us. We would be happy to offer our assistance.

If you are a law firm or legal department, UnitedLex can help with your eDiscovery and Legal Document Review processes. Click to learn more about our Litigation Support Services and Investigation Solutions.

UnitedLex is a technology and legal services company committed to delivering full-scale Digital Legal Transformation. The world’s most forward-thinking law departments rely on the company’s expertise in more than 25 global jurisdictions. Founded in 2006, the team includes 3,000 legal, engineering, and technology professionals with major operations in 18 countries. For more information, contact us.

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