LCJ Proposes Improvements to Proposed FRCP Amendments on Privilege Log Practices

LCJ’s Comment on proposed amendments to federal rules relating to privilege log practices urges the Advisory Committee on Civil Rules to address the unnecessary expense, burdens, and harmful gamesmanship caused by document-by-document logging through a direct amendment to Rule 26(b)(5)(A) in addition to the proposed amendments to Rules 26(f) and 16(b).

The proposed amendments to Rules 26(f) and 16(b) would require parties to discuss, and to prompt judges to order, the timing and compliance with Rule 26(b)(5)(A). LCJ argues that, although well intended, these amendments will have a limited effect. Only an amendment to Rule 26(b)(5)(A) will clarify that the rule does not require document-by-document privilege logs but instead allows parties to create categorical privilege logs or to agree on other alternatives.

As Judge John Facciola (ret.) and Jonathan Redgrave observed in a letter to the Advisory Committee in January, as a result of “the omission of any proposed amendments to FRCP 26(b)(5)(A)(ii) … [the proposal] fails to address the progeny of cases that misapply this rule … including courts holding the rule rigidly requires a separate log entry for each email in a chain of emails, regardless of circumstances."

LCJ will testify in favor of a direct amendment to Rule 26(b)(5)(A) on Monday, October 16, at the first of three scheduled public hearings on the proposed privilege log amendments. LCJ urges members and allies to engage in the public comment process by filing written comments and participating at the public hearings.

You can read LCJ’s Comment here. Additional comments on the proposed privilege log amendments are filed in LCJ’s document directory.