The process of creating privilege logs is cumbersome and complex, especially when you have a large number of documents designated as privileged. However, you might be surprised to learn that Rule 26 of the Federal Rules of Civil Procedure does not specify the form of “privilege logs,” beyond the requirement of enabling other parties to assess privilege. The burden is on the producing party to support their claims of privilege, but the rule provides wide leeway to determine the optimal means of privilege logging. This, of course, leads to numerous disputes at least in Federal courts. Reform is needed and an EDRM project recently addressed this area with a proposed protocol.
The EDRM Streamlined Privilege Log Protocol was drafted back in November of last year. As David R. Cohen recently wrote in The Legal Intelligencer, “[s]tarting in spring 2019, Privilege Project Team volunteers, who included lawyers and technologists from multiple law firms, e-discovery solution providers, and government entities, began brainstorming creative alternatives. After lengthy discussion and input from both plaintiffs’ and defendants’ perspectives, the EDRM Privilege Log Protocol emerged. The protocol is designed for use, in part or in full, for any litigation, arbitration, or investigation where a significant number of privileged documents (e.g., more than 100) are subject to privilege claims.”
The 15-step protocol (which starts on page 7 of the document) is designed to bring five important improvements to the privilege logging and assessment process, as follows:
- Setting up more communications and transparency between parties, to address privilege issues up front, and then providing tools for requesting parties to better evaluate privilege logs and claims;
- Allowing producing parties to use metadata privilege logs in the first instance, to reduce the time and expense of logging and to allow requesting parties to obtain privilege logs more quickly;
- Allowing requesting parties to obtain more detailed information about a sample of documents they select, to better test privilege decisions that are being made. This sampling methodology takes a fraction of the time required to prepare and assess privilege through traditional detailed logs, and yields additional information about the sampled documents, which can then be considered when assessing whether privilege claims generally are or are not well-founded.
- Providing greater incentives for parties to make careful and correct privilege determinations and privilege challenges in the first instance. Incorrect privilege claims or frivolous privilege challenges are more likely to be exposed in the aforementioned sampling process. Any inability to justify privilege claims or challenges could forfeit the time and cost savings that this streamlined logging system otherwise yields; and
- Reducing the likelihood of privilege disputes or the need for courts or special masters to resolve such disputes because of the increased communication and transparency and the incentives for making correct privilege decisions in the first instance.
As an example of the steps, here are the first four steps in the 15-step protocol:
- Parties need not include on privilege logs any documents that meet the criteria for privilege or work product protection, prepared after inception of litigation, such as the date suit was filed.
- Parties need not include on privilege logs any documents that are produced in partially redacted form with the redactions clearly marked.
- Parties will agree to the entry of a privilege non-waiver order that provides broad nonwaiver protection under FRE 502(d) and any analogous state laws.
- As part of pre-discovery conferences, parties should discuss the timing of the production of privilege logs—including whether they should be produced on a rolling basis, at the end of all productions, or at specific intervals.
As Cohen notes in his article, the protocol was presented to a panel of sitting judges acting as a “Judges Tank” at the 2020 Georgetown Advanced E-Discovery Institute (by David, project chair Cristin Traylor of McGuireWoods, Michelle Yeary of Dechert and Brian Kish of United Lex) and it earned unanimous “buy-in” from all four participating judges.
In addition to the 15-step protocol, the 22-page protocol document includes discussion of the traditional format for privilege logs, alternative privilege log formats, producing parties’ burden to support its claims of privilege via a privilege log and selected authorities related to privilege logging alternatives. While the protocol is currently listed as a “DRAFT”, David notes in his article that it is “ready for use. Parties can agree to use it on their existing matters (with any agreed modifications, where appropriate) or courts and other tribunals may adopt the protocol as an efficient means of dealing with privilege claims.”
So, what do you think? Do you think that this protocol will simplify privilege logging and reduce potential disputes? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.