It is axiomatic that privilege logging is one of the most time-consuming and risky aspects of e-discovery.
I wrote about itemized and categorical privilege logs in M. Berman, et al., eds., “Managing E-Discovery and ESI: From Pre-Litigation Through Trial” (ABA 2011), Chap. 5. In an itemized log, every email and every attachment must be listed. In an ESI-heavy case, the cost of doing so is likely high. On the opposite end, only the top email in a chain or string needs to be listed in the log. This approach treats the entire chain as a single communication. While less expensive, it poses the risk of inadequate disclosure and improper withholding.
We need not shoot a mouse with an elephant gun. Id. at 356. Proportionality rules should apply equally to privilege logging. Id. at 355, 358. Additionally, the logging rule, Fed.R.Civ.P. 26(b)(5) refers to the protective order rule, Rule 26(c). Further, the rules permit document requests by category. Therefore, to lessen the burden, a privilege log by categories should be permitted when appropriate. Id. at 356.
However, if a party unilaterally chooses to use a categorical log, it runs the risk that an opponent will argue waiver due to inadequate logging.
There is a solution. Rule 26(f) requires discussion concerning privilege. The form of a log can-should-must be discussed, and it can then be included in a Rule 16 report and a discovery plan, together with a Fed.R.Evid. 502 order. Additionally, a two-phase approach to logging may be prudent. For example, a phase 1 log may be less detailed. A party with cause to do so, could then request additional detail as to some of the withholdings in phase 2. Id. at 360. This combines cost-saving with a mechanism for obtaining additional detail, if needed.
A recent post, written by Rachel Harris, “Nevada federal judge permits categorical privilege [log] during discovery” (JDSUPRA Mar. 19, 2021), brings the points home. Ms. Harris states:
Judges in almost all of the federal circuits have endorsed categorical privilege logs under appropriate circumstances…. However, a showing of undue burden is often necessary. Generally, cases involving a relatively small number of documents and straightforward issues will not pass muster…. By contrast, cases involving hundreds of thousands of documents, complex issues and/or a robust litigation history are particularly ripe for categorical assertions of privilege. For example, one California court permitted categorical privilege where approximately 50 parties, 20 law firms and “hundreds of thousands, if not millions, of documents” were involved. Courts have also allowed a privilege log to employ a categorical approach when the discovery request on its face seeks “‘wholesale production of documents’ that are ‘ordinarily covered by’ work-product protection and/or the attorney-client privilege or the responsive materials are extremely voluminous.” [Emphasis added; footnotes omitted].
In her excellent article, Ms. Harris cites several cases decided since the 2011 book was published.