LAWYERS FOR CIVIL JUSTICE
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reform of privilege log requirementS   

On October 12, 2022, the Advisory Committee on Civil Rules approved amendments to Rules 16(b)(3) and 26(f)(3) concerning privilege logs. 
 
Those amendments, found here, are intended to reduce the burden placed on parties declaring privileged and work product materials during the discovery process. The rationale for amending 16(b)(3) and 26(f)(3) rather than 26(b)(5)(a) was to avoid a one-size-fits-all approach that would lack the flexibility to address the unique circumstances of individual cases. 
 
The two amendments are scheduled to open for public comment in August of 2023, and concerned parties need to understand what they mean and don't. 
 
These two proposed amendments work in tandem by clarifying that parties must provide a plan at the onset of litigation on how they plan to meet the disclosure requirements under 26(b)(5)(a) while also granting them the flexibility to factor in the unique circumstances of a case to achieve it. The amendments further prompt the courts to address the discovery compliance issue in its scheduling and case management orders. 
 
With the public comment period fast approaching, interested parties will have the opportunity to lend their voice to the adoption process by submitting letters and even testifying during the amendment's review hearing. 

 
Here are some important resources:
REPORTS:
  • Massachusetts Attorney General vs. Facebook, Inc. Supreme Judicial Court Decision - March 2021​
  • LCJ's Privilege Log Reform Comment to the Advisory Committee on Civil Rules - Privilege and Burden: The Need to Amend Rules 26(b)(5)(A) and 45(e)(2) to Replace "Document-by-Document" Privilege Logs with More Effective and Proportional Alternatives - August 2020
  • Jonathan Redgrave, Redgrave LLP: Re: Submission to Advisory Committee on Civil Rules in Support of Examining Rulemaking Regarding Privilege Logs - October 2020​​
WEBINARS:
  • RED CLE Webinar Series 2021 - Privilege Protocols (Reed Smith)


RELEASES:
  • LCJ Response to Invitation to Comment on Privilege Log Practice - August 2021
  • ​Civil Rules Committee Solicits Comments on Privilege Log Reforms - June 2021
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  • About Us
    • Who We Are >
      • Corporate Members
      • Law Firm Members
      • Defense Bar Organization Members
      • Board of Directors
      • Staff
    • LCJ Civil Justice Fellows Program
    • LCJ Annual Report
    • JOIN LCJ
    • Contact LCJ
  • Our Initiatives
    • Fix and Follow Federal Rule of Evidence 702
    • MODERNIZE PRIVILEGE LOG REQUIREMENTS
    • Protect the Right to Seal Proprietary and Confidential Information
    • Rules for MDLs
    • Disclose Third Party Litigation Funding
    • "Requester Pays" Discovery
    • Preserve Judicial Independence
    • Fix Rule 30(b)(6)
    • Amend Rule 23(b)(3)
  • Amicus Briefs
  • LCJ In the News
  • Membership Meetings & Resources
    • LCJ May 2023 Meeting
    • December 2022 meeting and photo gallery
    • LCJ CALENDAR
    • Member Login
    • MEMBERSHIP MEETINGS