What Is a Privilege Log? Plus Top 4 Best Practices
A privilege log is widely considered one of the most laborious and time-consuming tasks in litigation. Most attorneys cringe at the mere mention of a privilege log because of how difficult it is to assemble and review.
That said, a privilege log is a critical document that all aspiring legal professionals need to know about. It comes up often when working with clients. As such, it’s important to know how it works and what to include in one because it’s only a matter of time before you’ll come across it.
Keep reading to learn what a privilege log is, why legal teams use one, and the best preparation practices you can do when dealing with one.
What Is eDiscovery?
Before we look at privilege logs, let’s take a step back and take a quick look at the eDiscovery process for some context.
The eDiscovery process occurs before two teams meet in court. During this preliminary phase, two teams meet and exchange evidence with one another.
Rule 34 of the Federal Rules of Civil Procedure says that any party can request information from another party at any time. That means teams need to go into the eDiscovery process ready to respond to requests and to offer evidence. This is a big part of the pretrial process—and one that requires careful strategy and planning.
Despite this, no party has to comply with another request for information unless it comes via a court order. In some cases, a party may choose to withhold information based on privilege.
What Is a Privilege Log?
A privilege log is a document put together by an attorney that is part of a formal process for claiming privileged information during a case. Privileged documents are those that receive protection under attorney–client privilege. Consequently, privileged information is confidential.
The first thing to remember is that not all documents receive privileged status. For example, someone might make a statement to an attorney. However, that information might not necessarily be confidential.
FRCP Rule 26(b)(5)(A)
Rule 26 of the Federal Rules of Civil Procedure covers duty to disclose during the discovery process. Further, section (b)(5)(A) has to do with claiming privilege or protecting trial preparation materials.
Here’s a brief overview of this important rule: Section (A) covers information withholding. In short, it says that a party must take specific actions when withholding information.
First, the party must claim that information is privileged or subject to protection as trial preparation material. Second, the party must describe the nature of the documents, communications, or tangible items they are not producing. Further, they need to do so in a way that enables other parties to assess the claim without revealing the information itself that is protected or privileged.
Rule 26(b)(5)(B): Information Produced
This part of the rule says that—in the event where information obtained during discovery is subject to a claim of protection as trial preparation material or privilege of protection—any party that received the information can be notified of the claim by the party that makes it. The notifying party can also include the basis for the claim.
Upon receiving notification, the party needs to return, destroy, or sequester the information along with any copies. Additionally, the party can’t disclose or use the information until they resolve the claim.
What’s more, the entity must also take reasonable steps to retrieve the information if they disclose it before receiving notification. The rule states that the party can present the information to the court under seal for a determination of the claim.
Finally, the party must preserve the information until the issue is resolved.
What Should You Include in a Privilege Log?
A privilege log is ultimately a detailed record of information that a party is choosing to withhold from legal discovery. As such, it needs to be a careful record detailing all of the evidence in question.
Generally, a log should contain each document or item that the party is withholding. It should also contain the date, author, type of document, and a record of the type of privilege the party is claiming, such as attorney–client privilege.
What’s the Purpose of a Privilege Log?
A privilege log is a collection of evidence that you hope to withhold but may need to present in court. It’s important to realize that just because you issue a request for attorney–client privilege doesn’t mean the judge will grant it.
In some cases, you will need to present the information to the other party. As such, it’s critical to keep a careful record detailing all the information you are choosing to withhold. You may need to quickly produce the evidence upon request.
Who Creates a Privilege Log?
Creating a privilege log is usually a job for junior attorneys and paralegals. It isn’t something senior attorneys typically have to worry about putting together.
That said, senior attorneys still depend on having complete and accurate logs. This puts a lot of pressure on the person compiling a report to do a good job and include all the necessary information.
Best Practices for Managing Privilege Logs
1. Look into Specific Court Requirements
Before compiling a log, it’s a good idea to check with the local court to see if they have any specific requirements for it. This prevents having to go back in and revise the log after compiling it. Doing a bit of research up front can save a significant amount of time and effort.
Further, checking ahead of time can ensure that you have all the proper information that the court will want to see.
2. Be Methodical
It’s important to be very specific when claiming privilege for a particular document. If you choose to withhold information from discovery, make sure the reason is justifiable. It’s also important to thoroughly check the log to make sure that no contents are missing.
3. Organize the Privilege Logs
Make sure the log is well organized, and grouped in a way that is easy to view and understand. For example, you may organize documents by title, date, or subject matter. The information should be easy to browse and follow a logical order.
4. Use Automation
The days of manually compiling and managing privilege logs are long gone. Now, most firms use purpose-built eDiscovery platforms to analyze, organize, and compile documents like privilege logs.
This type of technology can save a great deal of legwork. It enables legal eDiscovery aides to spend more time going through the material and reviewing for accuracy and completion instead of combing through records.
Add it all up, and automating privilege log management saves time, reduces effort, and increases accuracy.
Venio’s Approach to eDiscovery Management
Venio offers end-to-end eDiscovery management through the powerful cloud-based VenioOne platform. Using VenioOne, your team can centralize all legal data in one user-friendly portal. VenioOne makes it easy to compile, organize, and process information for rapid reporting.
Unquestionably, compiling and managing privilege logs is a difficult and resource-intensive process. But with a platform like Venio, your team can save hours of research and work. That’s because the platform processes information at lightning speed—and with unparalleled precision.
Further, legal eDiscovery requirements change often. As a legal professional, you need to stay up to speed with the evolving landscape, especially in an increasingly litigious society.
Ready to take Venio for a spin? Even better. Request a demo today.
This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.