December 2025 Privilege Protection Amendments to Fed.R.Civ.P. 16 and 26

Two federal rules were amended, effective December 1, 2025.[1]  They encourage the use of Fed.R.Evid. 502 non-waiver orders and re-emphasize the flexibility of negotiated privilege logs under Fed.R.Civ.P 26(b)(5)(A).

Fed.R.Civ.P. 16

Rule 16 addresses pretrial conferences, scheduling, and management.  Subsection (b) covers “Scheduling and Management.”  Subsection (b)(3) addresses the contents of a scheduling order. Subsection (b)(3)(B) provides a permissive list of the contents of that order.  Under the 2025 amendment, an order “may”:

(iv) include the timing and method for complying with Rule 26(b)(5)(A) and any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced, including agreements reached under Federal Rule of Evidence 502….

Rule 26(b)(5)(A) is the privilege log rule.  Fed.R.Evid. 502 is the non-waiver of privilege rule.

The 2025 Advisory Committee Note states:

Rule 16(b) is amended in tandem with an amendment to Rule 26(f)(3)(D). In addition, two words–“and management”–are added to the title of this rule in recognition that it contemplates that the court will in many instances do more than establish a schedule in its Rule 16(b) order; the focus of this amendment is an illustration of such activity.

The amendment to Rule 26(f)(3)(D) directs the parties to discuss and include in their discovery plan a method for complying with the requirements in Rule 26(b)(5)(A). It also directs that the discovery plan address the timing for compliance with this requirement, in order to avoid problems that can arise if issues about compliance emerge only at the end of the discovery period.

Early attention to the particulars on this subject can avoid problems later in the litigation by establishing case-specific procedures up front. It may be desirable for the Rule 16(b) order to provide for “rolling” production that may identify possible disputes about whether certain withheld materials are indeed protected. If the parties are unable to resolve those disputes, it is often desirable to have them resolved at an early stage by the court, in part so that the parties can apply the court’s resolution of the issues in further discovery in the case.

Because the specific method of complying with Rule 26(b)(5)(A) depends greatly on the specifics of a given case there is no overarching standard for all cases. In the first instance, the parties themselves should discuss these specifics during their Rule 26(f) conference; these amendments to Rule 16(b) recognize that the court can provide direction early in the case. Though the court ordinarily will give much weight to the parties’ preferences, the court’s order prescribing the method for complying with Rule 26(b)(5)(A) does not depend on party agreement. But the parties may report that it is too early to settle on a specific method, and the court should be open to modifying its order should modification be warranted by evolving circumstances in the case. [emphasis added].

Fed.R.Civ.P. 26 & “Maximum Flexibility”

Rule 26 addresses the duty to disclose and provides general provisions governing discovery. Subsection (f) covers the conference of the parties and discovery planning. Subsection (f)(3) states what must be included in a discovery plan.  Subsection (f)(3)(D) is new.  Under the amendment, a discovery plan “must state the parties’ views and proposals on”:

any issues about claims of privilege or of protection as trial-preparation materials, including the timing and method for complying with Rule 26(b)(5)(A) and–if the parties agree on a procedure to assert these claims after production–whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502….

The 2025 Advisory Committee Note states:

Rule 26(f)(3)(D) is amended to address concerns about application of the requirement in Rule 26(b)(5)(A), which requires that producing parties describe materials withheld on grounds of privilege or as trial-preparation materials in a manner that “will enable other parties to assess the claim.” Compliance with Rule 26(b)(5)(A) can involve very large burdens for all parties.

Rule 26(b)(5)(A) was adopted in 1993, and from the outset was intended to recognize the need for flexibility. This amendment directs the parties to address the question of how they will comply with Rule 26(b)(5)(A) in their discovery plan, and report to the court about this topic. A companion amendment to Rule 16(b)(3)(B)(iv) seeks to prompt the court to include provisions about complying with Rule 26(b)(5)(A) in scheduling or case management orders.

This amendment also seeks to provide the parties maximum flexibility in designing an appropriate method for identifying the grounds for withholding materials. Depending on the nature of the litigation, the nature of the materials sought through discovery, and the nature of the privilege or protection involved, what is needed in one case may not be necessary in another. No one-size-fits-all approach would actually be suitable in all cases.

Requiring that discussion of this topic begin at the outset of the litigation and that the court be advised of the parties’ plans or disagreements in this regard is a key purpose of this amendment, and should minimize problems later on, particularly if objections to a party’s compliance with Rule 26(b)(5)(A) might otherwise emerge only at the end of the discovery period. Production of a privilege log near the close of the discovery period can create serious problems. Often it will be valuable to provide for “rolling” production of materials and an appropriate description of the nature of the withheld material. In that way, areas of potential dispute may be identified and, if the parties cannot resolve them, presented to the court for resolution. [emphasis added].

Comments

An “ESI Protocol” ≠ a “Discovery Plan”

The December 2025 amendments highlight the need for a “discovery plan.”  An “ESI Protocol” is not a “discovery plan.”

In fact, the term “ESI Protocol” is not found in the Federal Rules of Civil Procedure.  A “discovery plan” includes all aspects of an ESI Protocol; however, an ESI Protocol may not suffice as a “discovery plan.” “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024); An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025); see generally What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues (Nov. 29, 2025).

My “template” is titled “Discovery Plan and ESI Protocol.”  It might be time to start updating some forms. Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024).

Rule 502 Confers Important Protections, But it Has Limits and is Not “Bullet Proof”

The December 2025 amendments highlight Fed.R.Evid. 502 and encourage wider use of that Rule.  That was also done in the December 2015 amendments, but they apparently were insufficient.

Rule 502 agreements should be almost second-nature.  However, litigants need to follow their terms in order to get protection. Privilege Waived Because Pre-Production Measures Were Not Shown to Be Reasonable (Feb. 26, 2025); Citing the Correct Subsection of Fed.R.Evid. 502 is Important (Dec. 19, 2024).

“Inadvertent” production agreements may have shortcomings.  The United States District Court for the District of Maryland has published a form in its Local Rules to draft around those issues. See Local Rule 104.14 and the Stipulated Order Regarding Non-Waiver of Attorney-Client Privilege and Work Product Protection that is included in Appendix D.  In part, it reads:

Non-Waiver of Attorney-Client Privilege and Work Product Protection.  Pursuant to Fed. R. Evid. 502(d) and (e), the disclosure during discovery of any communication or information (hereinafter “Document”) that is protected by the attorney-client privilege (“Privilege” or “Privileged,” as the case may be) or work-product protection (“Protection” or “Protected,” as the case may be), as defined by Fed. R. Evid. 502(g), shall not waive the Privilege or Protection in the above-captioned case, or any other federal or state proceeding, for either that Document or the subject matter of that Document, unless there is an intentional waiver of the Privilege or Protection to support an affirmative use of the Document in support of the party’s claim or defense, in which event the scope of any such waiver shall be determined by Fed. R. Evid. 502(a)(2) and (3).  The parties intend that this stipulated order shall displace the provisions of Fed. R. Evid. 502(b)(1) and (2).  That is, all disclosures not made to support an affirmative use of the Document in support of a party’s claim or defense shall be regarded as “inadvertent,” and the producing party is hereby deemed to have taken “reasonable steps to prevent disclosure,” regardless of any argument or circumstances suggesting otherwise.  [emphasis added].

The Rule was designed to address issues that resulted in waiver in U.S. Home Corporation v. Settlers Crossing, LLC, et al., 2012 WL 302511 (D. Md. July 23, 2012).  “By defining ‘inadvertent’ and incorporating a test for the court to use to evaluate the conduct of the parties, the revised order negates the need to turn to Fed. R. Evid. 502(b) to essentially fill in the gaps.” See M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 400-05.

Further, Fed.R.Evid. 502 protects only attorney-client privileged and work product information. Historical ESI Highlights – Part IV – Hopson & Fed.R.Evid. 502 (May 27, 2022).

Different techniques must be used to protect other confidential information, such as trade secrets or information protected under the accountant or other privileges. See Expanding Privilege Protection to Fill the Gaps Left by Fed.R.Evid. 502 (Aug. 30, 2021); M. Berman, “The Continuing Utility of the Hopson-Immunized Clawback” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 416.

The Amendments Encourage Negotiation Over Privilege Logs

While Rule 26(b)(5)(B) “clawback agreements” and Fed.R.Evid. 502 orders deal with privileged information that “slips through the cracks” and they may remedy imperfection after-the-fact, privilege logs are preventative.

Former President Reagan said that negotiations are a process of “trust but verify. It’s still play, but cut the cards. It’s still watch closely. And don’t be afraid to see what you see.”  Privilege logs serve that function.

Privilege logs can provide protection. Fiskars II:  Vague Challenge to Privilege Log Entries Deemed Defective  (Aug. 25, 2024).

However, the failure to timely provide a log, or the failure to provide a sufficiently detailed log, may result in the waiver of privilege.  Court Issues Stern Warning About Privilege Logs (Aug. 11, 2025); cf. Inadequate Privilege Log Fails to Meet Burden of Proof; Waiver Doctrine Does Not Apply (Jan. 21, 2026)(applying burden of proof standard, instead of waiver doctrine).

Nevertheless, there is an intentional guidance gap in the Rules. Fed.R.Civ.P. 26(b)(5)(A) does not specify the contents of a privilege log.  This can lead to disputes.  How Much Detail is Enough in a Privilege Log? (Apr. 9, 2024); Privilege Log Deemed Partially Inadequate (Jun. 19, 2025).

Uncertainty can increase costs.  “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.”  The Sedona Conference, “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016).

However, there are cost-saving tools.  Fed.R.Civ.P. 29 permits stipulations governing discovery procedures.  Those agreements are generally enforceable. Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024).

There are at least five types of privilege logs, including (1) traditional, document-by-document logs; (2) metadata logs; (3) metadata plus logs; (4) categorical logs; and, (5) the relatively-new “certification logs.” Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024); Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021)(proportionality rules should apply equally to privilege logging); Example of a Categorical Privilege Log (Sep. 23, 2024); When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024).

Negotiation to reach agreement about the type or types of log to be used can save money. How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024).

Failure to reach agreement can be costly. Privilege Log Decision in Blake Lively v. Wayfarer Studios/Justin Baldoni, et al. (Nov. 25, 2025).

Importantly, privilege logs may also have substantive import beyond protecting privilege. A Privilege Log Can Be Admissible Evidence (Jan. 20, 2026); Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025); Privilege Log Helps Defeat Summary Judgment on One Count (Jun. 24, 2025); Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sep. 6, 2025).

For example, privilege logs have been used as evidence that the duty to preserve was triggered by assertions of work product.  Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024); Designation of “Work Product” Supports Inference of Intentional Spoliation (Jun. 27, 2024); When Did the Duty to Preserve Arise? – At Time of Plaintiff’s Pre-Suit Investigation (May 11, 2025).

In some limited circumstances, logs may not be required. No Privilege Log is Necessary in Limited Circumstances When Discovery Requests Are Overbroad (Apr. 5, 2025);  Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024); No Privilege Log Is Needed While Scope of Discovery Objections Are Pending (Aug. 3, 2024); When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024).

There are also some unconventional types of logs. Court-Ordered Production of a “Destruction/Unavailable” Log (Oct. 18, 2024).

The 2025 amendments to Rules 16 and 26 encourage the use of negotiated clawback and non-waiver agreements and re-emphasize the flexibility of the privilege log requirement.

This blog was initially posted on  Electronic Discovery Reference Model.

____

[1] This blog does not address a third amended rule, Rule 16.1 (multi-district litigation).