For the e-discovery practitioner, drafting a privilege log can be a daunting task. But proper planning before the review begins can produce significant efficiencies and also help ensure consistency in your log entries.
Your initial step should be to assess the requirements for a privilege log. Although numerous commentaries discuss log content, a sound starting point is to review the requirements set out in the Federal Rules of Civil Procedure, as well as in any applicable state or local rule.
FRCP 26(b)(5) provides a framework for the privilege log:
(A) Information Withheld. 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:
(i) expressly make the claim; and
(ii) 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 assess the claim.
The rule requires counsel to describe the document without disclosing the privileged information. Unfortunately, this is often not an easy task. To ensure uniformity and consistency, we recommend that you develop pre-drafted, partial descriptions that counsel would tailor to each document. These partial descriptions should be approved by lead counsel before the review begins. They should describe the documents in sufficient detail to comply with the rule, but without revealing the content.
Using these partial descriptions, counsel would complete the description to make the entry specific to the document being withheld or redacted. By way of example, a pre-approved document description might begin: “E-mail communication between attorney and client … .” Counsel could then finish the description by adding a phrase specific to the document: “… pertaining to XYZ business sale.” By standardizing the format and protocols in advance, you can produce a log that is uniform and consistent across all entries.
Although the contents of a log may vary, as a general overview, we recommend the log contain the following information for each entry:
- Type of document, i.e., memorandum, email, letter, etc.
- Name of the document author.
- Names of the document recipients.
- Document date.
- Title or description of the document.
- Subject matter of the document.
- The privilege claimed, i.e., “attorney work product,” “attorney client communication,” etc.
At Catalyst Consulting, we incorporate these practices within our Catalyst CR review platform to help counsel produce an on-time, consistent result. By identifying key fields and creating the proper review form tailored to each matter, entries can be drafted quickly and with consistency. Although each matter may differ, blending second-level review with counsel’s approved descriptions will spur efficiency during the review process.
The following screenshot from our system highlights what such a privilege-review form would look like:
By enabling counsel to determine case-specific coding in “real time” for documents deemed not privileged during the log process, you can keep pace with document production of responsive, non-privileged documents throughout the review. This avoids the need to produce documents at a later date that “fall out” of the privilege log process.
Also, by applying the single-value field for document descriptions, reviewers are guided by counsel-approved language, leaving the reviewer to focus on the few words necessary to identify the nature of the document or communication without revealing its content.
To ensure accuracy at all steps, you should incorporate thorough, regular quality control of privilege determinations. As with any document review effort, thorough training and planning help ensure success. By using a standardized privilege log protocol and properly training the review team, counsel should minimize uncertainties and improve the quality and accuracy of each entry.
Of course, each case will differ depending upon the nature and scope of the underlying data. For this reason, it is imperative to include updated, thorough attorney lists (attorney names, firms, acronyms and e-mail addresses) for counsel logging documents to use during review. As questions arise, counsel should engage the client to ensure reasonable efforts are used to determine privilege. As the review process yields new information, effective review protocol requires that information be used to code future entries as well as be incorporated into previous entries during QC review.
By following a cohesive strategy at the outset and utilizing review and drafting tools available within an e-discovery hosting and review platform such as Catalyst CR, the consistency, uniformity, accuracy and defensibility of your privilege log process canbe established before the first entry is ever made.