The cornerstone of the your legal relationship with your lawyer is attorney-client privilege. Guarding privileged information is critical throughout the discovery process. In order to assert privilege and withhold potentially relevant documents, the attorney or litigation support professional must prepare a privilege log entry associated with each document subject to the privilege.
What Is a Privilege Log?
A privilege log is an entry for each privileged document which provides enough information so that the opposing party can reasonably determine whether the document is privileged. There are four main types of privilege which can be claimed by an attorney - Attorney Work Product, Attorney-Client, Attorney Advice, and Joint Defense.
While creating a privilege log can be a tedious endeavor, it is an essential part of the discovery process. This task is critical, as under-asserting privilege may lead to giving up privilege for documents yet, over-asserting could lead to a time consuming in camera review or necessitate an expensive and time-consuming second pass review of your entire discovery corpus. For each privileged document, a complete privilege log and document description will keep your team organized and ultimately is required to meet your obligations, thereby allowing the opposing party to properly assess the claim.
Privilege Log Federal Rules (FRCP) 26 (b)(5)(A) - Claiming Privilege And Withholding Documents
Federal Rule of Civil Procedure 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.
This rule is setting out the framework for the creation of a privilege log (priv log). eDiscovery software like Digital WarRoom streamlines the process using built-in templates and autofills certain fields of your privilege log with available data as a document is marked as privileged. Keep in mind that this in no way negates the lawyer’s duty to review each privilege log entry.
Privilege Log Example Fields
The privilege log provides a plethora of data regarding the document and the reason for the privilege.
All of the fields listed below 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)
- Custodian (The owner of a particular collection, assigned during review)
The sample privilege log screen shot below shows some of these fields within the privilege log in Digital WarRoom:
When it is time to send your privilege log, you can fully customize which fields to produce. Remember that local bench rules and your 26(f) conference agreement always take precedence over our privilege log template. The user determines which fields to produce within the privilege log.
Sample 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 marked as privilege will require a privilege log entry. Digital WarRoom has a tool called the "Work Product Inspector" which is perfect for marking documents and supports on-the-go creation of the corresponding privilege log entries.
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. 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.
Digital WarRoom has a set of ten default privilege reasons as shown in this sample privilege log:
If you choose the Reason “Attorney requested legal assistance” you would see the Comment Box populate with information that you need to complete:
Privilege Log Best Practices
A good best practice is to review each document once. If privileged, apply the appropriate mark and fill out the privilege log entry immediately. However, this process is not always followed due to various factors. Digital WarRoom has guardrails set to assist in maintaining the integrity of your privilege review. For example, Digital WarRoom does not allow you to bulk assign privilege type or privilege reason. This needs to be done manually for each privileged document.
There are clear advantages to preparing a privilege log within an eDiscovery tool: The original metadata fields will be passed through to your log for each document and you can make a template for your privilege type and reason. This leads to significant reduction in the time and cost associated with your privilege review, thus advancing DWR’s mission of making eDiscovery just, speedy, and inexpensive.