A Request to Serve a Categorical Privilege Log for 8,000 Documents Was Denied

A.I. Protective Order by Consent in Google Case

September 13, 2026

Published by Michael Berman at September 14, 2026

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There are many types of privilege logs: document-by-document logs, metadata logs, metadata plus logs, categorical logs, top-of-chain only logs, and certification logs to name a few. The Sedona Conference wrote that: “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.” “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016).

In Turiello v. Central Sprinkler, LLC, 2026 WL 2546247 (D. Del. Aug. 28, 2026), Defendants sought permission to serve a categorical privilege log for the approximately 8,000 documents claimed to be privileged.

The court ruled:

IT IS HEREBY ORDERED that Defendants’ request to serve their proposed categorial privilege log on Plaintiffs is DENIED. IT IS FURTHER ORDERED that, with respect to the approximately 8,000 documents withheld from production to Plaintiffs by Defendants allegedly on grounds of privilege, Defendants shall produce and serve on Plaintiffs on or before September 11, 2026 a document-by-document privilege log which, for each document withheld from production allegedly on grounds of privilege, “establish[es] on a document-by-document basis sufficient detail to show a prima facie basis to support” the claimed privilege.

The court explained: “In the instant action, Defendants’ proposed categorical privilege log, which is attached in representative form as Exhibit A to D.I. 128, fails to meet the requirements of Rule 26(b)(5) to describe the withheld documents with sufficient details to allow Plaintiffs to assess the asserted privilege claim. Among other reasons, the lack of dates for each document, the undifferentiated listing of participants as a group for a category of documents – as opposed to for each document – with asterisks next to attorneys without indicating whether those attorneys sent, received, or were merely copies [sic] on the communication, and the failure to explain the reason for the clamed privilege deprives Plaintiffs of sufficient information to evaluate Defendants’ privilege claims for the documents withheld. Thus, Defendants’ proposed categorical privilege log does not meet the requirements of Rule 26(b)(5).”

In what was apparently a proportionality analysis, the court added: “Defendants admit in their submission that ‘JCI must, and has reviewed each document individually to determine whether privilege or work-product protection applies …’ … Therefore, it appears that the lion share of the work necessary for a document-by-document privilege log has already been completed by Defendants. The additional amount of work for Defendants to create a document-by document privilege log, given that the documents have already been reviewed and evaluated for privilege individually by Defendants, is unlikely to create an undue burden on Defendants.”

Fed.R.Civ.P. 26(b)(5)(A) states: “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 1993 Advisory Committee Note states: “Paragraph (5) is a new provision. A party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection…. The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories. A party can seek relief through a protective order under subdivision (c) if compliance with the requirement for providing this information would be an unreasonable burden. In rare circumstances some of the pertinent information affecting applicability of the claim, such as the identity of the client, may itself be privileged; the rule provides that such information need not be disclosed.” [emphasis added].

The 2006 Note states: “The Committee has repeatedly been advised that the risk of privilege waiver, and the work necessary to avoid it, add to the costs and delay of discovery. When the review is of electronically stored information, the risk of waiver, and the time and effort required to avoid it, can increase substantially because of the volume of electronically stored information and the difficulty in ensuring that all information to be produced has in fact been reviewed. Rule 26(b)(5)(A) provides a procedure for a party that has withheld information on the basis of privilege or protection as trial-preparation material to make the claim so that the requesting party can decide whether to contest the claim and the court can resolve the dispute.” The procedural “clawback” process was added in rule 26(b)(5)(B).

The 2025 Notes state:

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. [emphasis added].

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