Rule 26(b)(5)(A) requires that when a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
  • expressly make the claim; and
  • describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to asses the claim.
While rule 26(b)(5)(A) does not require logging per se, many courts routinely hold that logging is required. This “expectation” to log all items withheld on the basis of privilege creates an extremely costly burden on parties, as logging individual records can be very time consuming and is a task that can’t be solved by technology-assisted tools. Further, document-by-document logs are rarely proportional to the needs of the case and are often of marginal utility. Most of the time, logs are not effective tools to enable the requesting party to evaluate the claims of privilege. We see inconsistent approaches where circuits and local rules apply varying standards and requirements.
 
LCJ is advocating for reform of privilege log practices, including meaningful meet and confers, presumptive exclusion of categories, prioritization of issues, logging by categories, the incorporation of Rule 502 and sampling.
 
Here are some important resources:
RELEASES: