The Right eDiscovery Software Will Help Build Your Privilege Log

Posted by Jeremy Greer | Tue, Jun 04, 2019

The most important right which lawyers establish between them and their client is privilege. Privilege is essential, tricky, and can be lost easily. Asserting privilege is a tedious chore of great importance with heavy consequences for misuse. It is arduous to say that a document is privileged and fill out the log thereby claiming that there are relevant documents but you are going to withhold them. Legal professionals must spend 2, 3, 4 minutes per document simply asserting privilege. This task is crucial, as under-asserting privilege could lead to giving up privilege for all documents. At the same time, over-asserting could lead to a time consuming in camera review or an expensive redo of your eDiscovery project.

 

How To Claim Privilege And Withhold Documents

Federal Rule Number 26 b 5 a explains the requirements of how to claim privilege and withhold documents.

  • 26 b 5 a
    • (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.

These requirements are alluding to the creation of a privilege log (priv log). The intent of a privilege log is for the withholding party to provide enough information so that the reviewing attorney of the opposing party can fairly determine whether the document is privileged. In the old days, privilege logs were created using spreadsheets by manually entering data for each document. eDiscovery software like Digital WarRoom saves you time by templatizing portions of the privilege log process. Keep in mind however that this semi-automation does not relieve you of your duty to manually review each privilege log entry.

 

Privilege Log Fields

For starters, here are some sample privilege log fields that should be reviewed and/or entered manually. Several of them are pieces of metadata from the original document that are passed through automatically within Digital WarRoom.

  • Author
  • To
  • CC
  • Date
  • Privilege Type
  • Reason

The fields below are tracked within the privilege log report. While any of these fields can be produced, Digital WarRoom makes them available for QC and internal use. For example: if you have multiple reviewers using separate login IDs, you can track the marking reviewer's login ID and the timestamp for each privilege log entry. Digital WarRoom also generates several unique numerical IDs for each document to provide a format to reference each document in the database and so that you can easily sort your corpus to bunch similar documents.

All of these fields will populate automatically, showing the auditable nature of performing privilege review within an eDiscovery software platform like Digital WarRoom. 

  • Beg Bates 
  • End Bates
  • Mark Reviewer (Login ID)
  • Marked on (Date)
  • Privilege Reviewer (Login ID)
  • Privilege Entry (Date)
  • Comment (Created during review)
  • Family # (A unique ID number representing a document family. Ex: document and attachment)
  • Rank #
  • Pith # (A unique ID number representing a set of near-duplicate documents) (see deduping article for explanation)
  • Doc Title (Or subject line for email)
  • Extension
  • Locus
  • Custodian (The owner of a particular collection, assigned during review)

When its time to send your privilege log, you can fully customize which fields to produce. Remember that local bench rules and your 26f conference agreement always take precedent over our privilege log template. The user is in charge of knowing which fields to produce within the privilege log.

 

Semi-Automated Privilege Log

Within Digital WarRoom software, after you mark a document as privileged, the privilege log function becomes available. The software assumes that every document produced as privilege will require a privilege log. Digital WarRoom has a tool called the "Work Product Inspector" which is perfect for the marking of documents and supports on-the-go creation of the corresponding privilege logs when applicable. To begin the workflow, simply mark a document as privileged within the work product inspector and tab over to “Privileged Metadata” to fill out the corresponding privilege log entry on the fly. As mentioned, available pieces of metadata such as Author, To, From and CC should populate automatically within the privilege log. Now is the time to validate that data and assign a privilege type and privilege reason.

There are four main types of privilege which we have identified that an attorney can claim:

  • Attorney Work Product
  • Attorney Client
  • Attorney Advice
  • Joint Defense

Now select from a list of canned privilege reasons. Digital WarRoom has a set of ten default privilege reasons and you have the ability to create a custom privilege reason at any time for easy access in the privilege log window.

An example would be: “Confidential communication between attorney and attorney subordinate where attorney requested legal assistance from subordinate so that attorney could provide legal advice and legal service with respect to <blank>.”

 

 

Should You Fill Out the Privilege Log Immediately When Marking A Document?

For smaller review teams, the best practice is to review the document once and fill out the privilege log immediately. Although we highly recommend preparing the privilege log simultaneously as you prepare the production, this is not the reality for some reviews. For example, some projects have a specific person assigned for privilege review; or there is a tight deadline to meet which means cutting corners. Digital WarRoom has barricades set up to encourage you to maintain the integrity of your privilege review. For example, Digital WarRoom does not allow you to bulk assign privilege type and privilege reason. This needs to be done manually. Although the option is available, we do not recommend exporting and making changes to your privilege log outside of Digital WarRoom. When multiple copies of spreadsheets are floating around, they can become out of sync or fields can be changed which may be difficult to repair.

 

Conclusion

There are clear advantages of filling out your privilege log within an eDiscovery tool. The original metadata fields will be passed through to your log for each document and you can templatize your privilege type and reasons to your liking. These benefits should lead to significant reduction in the time and cost of your privilege review, upholding our mission of making eDiscovery just, speedy and inexpensive.

 

 

Topics: Best Practices

Written by Jeremy Greer

Jeremy is the Marketing Director at Digital WarRoom. He believes in making eDiscovery accessible for everyone and creating publicly available educational content. You can find him exploring National Parks, watching Seattle sports, or sitting in the yellow booth on the Bainbridge Island ferry.

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The content on this blog is not intended to be legal advice.
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