How to Draft a Privilege Log
Many legal professionals and laypersons alike are unaware that there is virtually no mention of a "privilege log" in federal and state laws and court rules. What these laws and rules do require, however, is that the parties to a case provide each other with the basis for any claim of privilege, and certain details regarding each document that is withheld under that claim. Privilege logs are the standard convention that has arisen in the legal profession to meet this requirement. Drafting privilege logs can be a time-consuming exercise, but is worthwhile. A detailed, well-crafted privilege log can help to avoid future motion practice and even sanctions.
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Instructions
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Check the applicable rules. The rules of civil practice for the court in which your case is pending may expressly state the required contents and form of privilege logs. If you are in federal court, for instance, your starting point should be Rule 26(b)(5) of the Federal Rules of Civil Procedure.
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Check your judge's standing orders or case management procedures. Many judges have specific standing instructions regarding privilege logs. Those that do expect all litigants appearing before them to comply with those instructions. For federal judges, standing orders can be found online, on the judge's page on the court website. For state judges, availability varies, but if you are uncertain as to whether there is an applicable order, a call to the judge's clerk or deputy can get you started.
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Create a table or spreadsheet to serve as the template for your privilege log. The rows of the table will be the individual documents that need to be logged, while the columns will contain information about each of those documents. You should set up a column for every category of information required by the applicable rules and your judge's standing orders. Categories of information which should typically be listed include: the category of document (email, letter, report), title or subject line, author, recipients, date of creation or transmission, bates numbers (a system of marking individual pages often used in litigation) if applicable, subject matter, type of applicable privilege (attorney-client privilege, work product protection, spousal privilege, doctor-patient privilege, etc.).
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Review each document for privilege.
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Log each document where privilege is present, filling in all possible columns. Use care, particularly when describing the subject matter of the document. Although you must provide enough information to support the claim of privilege, if you provide too much information you could provide your opponent with an unwarranted advantage or even risk waiving the very privilege you are claiming. When logging a document that has attachments, be sure to reference those attachments, either by logging them separately or by including them in the description of the document on the log.
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Tips & Warnings
Many professional services are available to assist in preparing privilege logs. These services can range from the truly simple (data entry or typing), through the highly complex. Some companies offer specialized software designed to streamline and standardize the privilege review process itself, particularly in large-scale document reviews. These software programs will also make producing a privilege log simpler.
If a team of individuals is reviewing documents for privilege, make sure everyone on the team is adequately trained and has been equipped with a complete list of attorneys whose presence on a communication could signal privilege.
Attorneys, courts, and individual judges differ as to whether each email in an email chain must be separately logged. Be sure to check your local rules, your judge's standing order and prior orders, and your supervisor's preferences before logging email chains.
Issues surrounding privilege and privilege logs can be quite complex. Consult a licensed attorney if you have questions or are uncertain about how to proceed.
References
- Catalyst; Best Practices in Drafting a Privilege Log; Chris Toomey; 2010
- Drescher ProParalegal; Preparing Privilege Logs; 2011
- Federal Rules of Civil Procedure: Rule 26 - Duty to Disclose; General Provisions Governing Discovery
- United States District Court for the Northern District of Illinois: Magistrate Judge Arlander Keys - Case Management Procedures (Privilege Logs)
- Photo Credit Comstock/Comstock/Getty Images
