Reducing the Burdens of Privilege Logs: Leveraging Proportionality, Using Alternative Log Forms, Avoiding Waiver

This CLE course will provide attendees with practical guidance and innovative ways to reduce the burdens of producing defensible privilege logs under Fed. R. Civ. P. 26(b)(5)(A), while still adequately protecting privileged communications and work product. The panel will (1) discuss leveraging Federal Rule 26(b)(1)'s proportionality standard during the privilege logging process; (2) analyze alternative privilege log formats like categorical and metadata-plus logs; and (3) explain best practices to help avoid inadvertent production and waiver of protections during the discovery process.

To shield responsive but privileged communications and work product from discovery, counsel must review the documents, expressly assert the right to withhold the items, and describe them in a manner that will enable other parties to assess the claim. This process can consume hundreds of attorney hours, even in modest-size cases.

The Federal Rules now make the concept of proportionality an important factor in discovery. A burgeoning issue courts are addressing is whether and to what extent it can be applied to the privilege logging process. Issues of proportionality and undue burden have also highlighted the use of alternative formats for privilege logs instead of the time-consuming process of generating document-by-document logs requiring unique detailed entries. The panel will provide an in-depth discussion of how these work and what cases seem best suited.

Regardless of the method to reduce the burdens associated with privilege logs, it must prevent the inadvertent disclosure or waiver of protected information. The panel will offer practice pointers on how to address these concerns.

Listen as the panel, including the co-leaders of the Sedona Conference's Working Group 1 Drafting Team on the Privilege Log Process, discusses how to improve the efficiency and quality of privilege logs.