Example of a Categorical Privilege Log

Addison Central School Dist. V. Monsanto Co, Solutia, Inc., 2024 WL 4212351 (D. Vt. Sep. 17, 2024), consists entirely of the publication of an ESI Protocol.

The parties stipulated that the following categories of documents need not be produced and “presumptively need not be included on a privilege log….”

1. Communications exclusively between a Plaintiff and his/her/its Litigation counsel regarding this Litigation within three (3) years of filing of the Litigation and thereafter;
2. Communications exclusively between a Defendant and its litigation counsel regarding the PCB Litigation;
3. Communications between Plaintiffs’ litigation counsel and experts,[1] consultants, and litigation support personnel regarding the prosecution of this Litigation;
4. Communications between Defendants’ litigation counsel and experts, consultants, and litigation support personnel regarding the defense of the PCB Litigation;
5. Work product created by Plaintiffs’ litigation counsel in anticipation of this Litigation within three (3) years of filing of the Litigation and thereafter;
6. Work product created by Defendants’ litigation counsel in anticipation of the PCB Litigation; and
7. Produced documents with redactions for attorney-client privilege, work product doctrine, or any other applicable protection or privilege, provided the reason for the redaction appears on the redaction label, and provided the unredacted portion provides information sufficient to allow the Receiving Party to assess the claim of privilege.

As to redactions:  “If a file that originates in ESI needs to be redacted for privilege before production, the file will be rendered in TIFF, and the TIFF will be redacted and produced. The Producing Party will provide searchable text for those portions of the Document that have not been redacted. Any redaction applied to a Document for privilege should be clearly visible on the face of the TIFF image (e.g., black boxes on white pages or outlines around white boxes) so that the area that has been redacted for privilege can be clearly identified.”

Categorical logs can be cost-effective; however, defining categories may be difficult.  Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024).

Unlike Addison, some information about what is withheld is frequently required to be disclosed.  For example:  “Usually, the number of documents withheld must be disclosed and sometimes there must also be a certification that the privilege was not waived by disclosure.”  Id.

For more on categorical logs, see:

When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024);

Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021);

Categorical Privilege Log Presented Interpretive Issues (Nov. 17, 2021);

Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024);

What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024).

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[1] Under Fed.R.Civ.P. 26(b)(4), communications between counsel and a testifying expert  that “identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or … identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed,” are discoverable.  The exclusion in Addison could be over broad.