Given that it is 2016, I would have thought the issues surrounding the provision of privilege logs during discovery would have been long settled. I once participated in a litigation matter that had a privilege log with tens of thousands of documents listed on it that was created by hand. Needless to say, I would have loved to have had even a partially automated process available to use. I can’t remember a case where a Privilege Log was not part of the eDiscovery process. In fact, so routine is the creation and delivery of privilege logs that Cavo eD built an automated Privilege Log creation feature to make the process even easier for our users.
Apparently I was wrong. In David Mizer Enters. v. Nexstar Broad., Inc. (C.D.Ill. Aug. 31, 2016, No. 14-cv-2192) 2016 U.S. Dist. LEXIS 117076, the defendant claimed that pursuant to Federal Rule of Civil Procedure Rule 26(b)(5)(A)(ii), they were not required to provide a privilege log. Compliance with the Rule requires a party that withholds information based on privilege, must describe the information they are not producing in enough detail to assess the validity of the privilege, while not actually revealing the information. Privilege logs traditionally set forth the information with enough specificity (a summary of the key identifying information) and the specific grounds for asserting the privilege. While Rule 26 does not specifically refer to a “privilege log”, compliance with the Rule has traditionally been through the submission of a privilege log.
Twice the defendant was ordered by the court to produce a privilege log for the information that was withheld. The privilege log should “be kept if there are any documents withheld on the basis of attorney client privilege and made the same rule with respect to the Request for Production 4, with the exception of communication between the existing counsel and the Defendant”.
Instead of following the courts order, the Defendant instead transmitted to the Plaintiff a series of redacted emails containing the date of the email, sender and receiver of the email and the Re: line contents. Upon review of this information, the court determined that it was impossible to tell whether the redacted emails contained sufficient information for the Plaintiff to assess the validity of the privilege claim. Quoting Hobley v. Burge, 433 F.3d 946, 947 (7th Cir. 2006), the court said that the privilege log should specifically state the privilege which is being asserted for each document.
The court then said that a privilege log must be produced within 21 days that contains the following information listed for each document that is withheld on the basis of attorney client privilege or attorney work product privilege (excepting communication with counsel of record:
1) The privilege asserted;
2) A general description of the document by type (e.g. letter, memorandum, report);
3) The date of the document;
4) A general of the subject matter of the document;
5) The name and job title of the author or originator of the document; and,
6) The name of the person who received a copy of the document and their affiliation with the Defendant.
While Privilege Logs are not a sexy part of lawyering, in fact they remain the best way to withhold information that should be withheld. Logs work to provide both sides with guarantees that rules are being followed and clients are being served. Having said that, they can be boring to create and execute. That is why Cavo eD has baked a Privilege Log Report system into the platform that can be easily created using proper document privilege tags designed before a review begins and then quickly reviewed before they are produced in an automated report. Being in compliance has never been easier.