Avoiding Objections to Privilege Logs: Amended Rule 26(f)(3)(D), Criteria for Inclusion, Descriptions, Technology

This CLE course will provide attendees with practical guidance for complying with the mandatory requirement that discovery plans include the parties' views and proposals about the timing and method for complying with Rule 26(b)(5)(A) and on preparing and producing below budget privilege logs that will not draw valid objections. The panelists will discuss the key components of a log, negotiating less onerous logging requirements, metadata, categorical logs, and identifying flaws in adversaries' privilege logs, as well as how technology can reduce cost, improve quality, and prevent privilege waiver.

Unless the parties stipulate otherwise, Fed. R. Civ. P. 26(b)(5)(A) mandates that when withholding an otherwise discoverable document on the grounds of privilege or other protection, responding parties must assert the basis for withholding the document and provide sufficient information to assess that claim. But within those general requirements lies substantial room for interpretation. This webinar will share best practices for generating logs that satisfy governing obligations without engaging in a costly, fully manual exercise prone to error.

The best place to start is well before the first privilege log entry is drafted, and this is now required under amended Fed. R. Civ. P. 26(f)(3)(D), which expressly requires agreements on "issues about claims of privilege" as part of the meet-and-confer process. The parties are advised to take advantage of this opportunity to exempt whole categories of documents from logging.

Jumping ahead, counsel should serve a privilege log only after a thorough quality control screening to identify third parties that could cause a privilege waiver. Diligent opposing counsel will scrutinize privilege logs closely.

Listen as the panel discusses these and many other strategies for avoiding costly privilege log mistakes that frustrate courts and sidetrack parties from the merits.