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This article originally was published in the June 2, 2020 edition of North Carolina Lawyers Weekly.
Privilege logs are often considered back-burner items in complex litigation and not addressed until discovery deadlines draw near. However, paying attention to privilege logs early on can be a hidden factor in in a successful litigation effort, helping to strengthen a team’s case while also keeping costs in check.
The key to making privilege logs work for you and your clients is to start considering them at the outset of the case. Litigators should carefully consider what information to include on a privilege log and how to set up and organize the log.
Privilege Logs: Getting Started
Creating a privilege log can be time-consuming and therefore potentially expensive. It is best to discuss the privilege log requirements when drafting ESI (electronically stored information) protocols with opposing counsel to ensure all parties are on the same page with regards to what the privilege log should include and what may be excluded. For example, it is common to exclude from the log documents related to the litigation that were created after the filing date. But such provisions should be established at the start of the process.
The ESI protocol or applicable government guidelines for the case are the foundations that will help determine how you set up your privilege review. For example, you should determine whether you need to log redactions, as this information could modify how privilege redactions are applied. Knowing what is required up front will save you potentially duplicative work on the back end.
Other decisions that can be covered in ESI protocols can improve the quality and efficiency of your privilege review and logging efforts. For instance, an ESI agreement can set out how to identify privileged documents and information, the format of the privilege log, the types of information to include on the log, and how to log certain types of documents (e.g. email strings). Most parties will want to include an inadvertent disclosure provision (aka a clawback provision) in their ESI agreements as well.
The timetable for delivery is another item that should be negotiated up front in the ESI protocol. Some cases will require multiple logs created after each production. For others, a single privilege log will suffice. Creation of multiple privilege logs requires more work so it is best to know at the beginning of a privilege review if the there is an obligation to create multiple privilege logs so that efficiencies can be used to automate the creation of privilege logs to the best extent possible.
What to Include in a Privilege Log
Nearly all privilege logs include certain standard information for each entry, such as:
- The document date;
- The parties involved, with attorneys and legal staff identified;
- The privilege asserted
- A brief description of the withheld material.
The privilege log description is the one item requiring the greatest amount of consideration. This can be a file name or an email subject line from the metadata of the privileged documents or a brief sentence describing the nature of the document. Generally, the privilege log should identify each entry in a way so the receiving party can assess the claim for privilege.
One tactic for saving time and reducing the burden of logging privilege would be to agree upon the exchange of metadata privilege logs. Metadata privilege logs rely on metadata extracted from the documents, such as date, author, email from, email to, email cc, email subject and file names, to generate the privilege log. Metadata privilege logs eliminate the need to craft descriptions for each entry and instead allow the file name or email subject to provide the subject matter information about the privileged documents.
Another time-saving option is to log related items by categories, rather than by individual entries. Such categorical logs can be organized by communication type (for example, anything between the client and outside counsel related to a specific litigation) or by subject matter (such as communications related to contract drafting).
If the categorical log approach is utilized, you will need clearly defined categories and ones that are easily recognized and agreed upon by all parties. If this approach is used, it can save significant time and expense. Categorical privilege logging should be negotiated with opposing counsel before privilege log work begins so that the agreed upon categories can be identified during privilege review and not after the fact which would reduce the benefit of this type of log.
Other Privilege Log Best Practices
As mentioned, privilege logs can be time-consuming and costly to produce. Thankfully, legal technology has advanced greatly in the last 20 or so years, and current document review platforms allow for a good deal of automation that results in a fair amount of saved time. Using the efficiencies afforded by a database system to standardize privilege log fields and extract work product will help minimize errors, save time and result in a more consistent product.
But even with improved technology, attorneys still need to have a careful eye on quality control. Attorneys need to be aware to check metadata logs to make sure privileged information isn’t inadvertently revealed in the metadata. This doesn’t happen often, but it can happen, so it always pays to check. Proofreading privilege logs, even metadata logs, will minimize potential problems later down the road.
Privilege log issues aren’t going to grab headlines, but they provide a solid piece of the foundation in building a successful case. Litigators are well-advised to consider these issues early and have a privilege logging plan in place to ensure that your privilege log serves your case and your client.
Justine Kelly’s practice focuses on eDiscovery representing corporate clients in the collection, review and production of electronic and paper files. As part of the leadership team for Womble Bond Dickinson’s BullDox group, she assists with the development and implementation of case document review strategies.
