Todd Heffner of Smith Currie (Courtesy photo)

Privilege logs are awful(ly expensive and time consuming). Is there a way to make them painless? No. Is there a way to make them less awful? Yes. Lots, in fact. There are two general ways to accomplish this, which we'll explore below:

1. Reducing what must be included on the privilege log by agreement; and
2. Some tips and advice for getting them right in the first place.

First, why privilege logs. For those of you who may have forgotten—or tried to block it out of your memory—Federal Rule of Civil Procedure 26(b)(5)(A) requires the party withholding privileged (or otherwise protected) information to “describe the nature of the [withheld] documents … and do so in a manner that, without revealing [privileged] information … will enable other parties to assess the claim.” Over time, courts have generally interpreted this rule to require a document-by-document log that includes a brief description of why the document is protected, the senders or receivers of the document, and the document's date. Because the rule does not explicitly require this approach, there is some room for alternative arrangements.

Altering the default document-by-document privilege log is probably the best way to reduce the pain of privilege logs. In fact, FRCP 26(f)(3)(D) encourages the parties to discuss privilege in their pretrial conference and FRCP 16(a)(3)(B)(iv) suggests that any agreements the parties reach can be included in the court's scheduling order. Beware, however, that certain jurisdictions limit how far afield you can go from the traditional document-by-document log, so it will be important to research this issue first. There are three main modifications you could make through agreement with opposing counsel:

1. No privilege logs;
2. Categorical privilege logs (grouping the reason for protection into categories); or
3. Metadata-only privilege logs (skipping the reason the document is protected).

You could also agree that certain categories of communications never even require logging, like anything after the date the lawsuit was started, or any emails to or from outside counsel. All of these options come with some potential drawbacks and are unlikely to eliminate privilege challenges completely, but are still worthy of careful consideration.

A good privilege log starts with good privilege determinations on the documents themselves. But making correct privilege determinations is an increasingly difficult task—the roles of lawyers within organizations continue to morph, there are more potentially privileged communications, and there are more potentially confusing agent relationships than ever before. And this task often rolls downhill to the youngest associate on the case. This young associate hopefully learned a bit about privilege in law school, but probably never appreciated how complex the question becomes in practice.

Training reviewers so that they make correct privilege calls, therefore, is the first step to an accurate and defensible privilege log. A great case to read is SodexoMAGIC, LLC v. Drexel Univ., 291 F. Supp. 3d 681 (E.D. Pa. 2018). In it, district court Judge Michael Baylson lays out 13 scenarios involving in-house attorney communications to help the parties understand when claiming privilege is proper. Consider also In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) in which then-circuit court Judge Brett Kavanaugh articulates the D.C. Circuit's standard for determining whether an email constitutes business advice or legal advice. (The point here is it won't be the same in every circuit!)

These cases just skim the surface—what about work-product? Do the common interest, self-critical analysis, Upjohn, or Kovel privileges have any bearing on your review? Simply put, privilege determinations are not easy. If you don't take the time to train the reviewers, when it comes time to assemble the privilege log, which requires articulating a reason for why the document is protected, it will be a disaster.

Beyond training, it is helpful if the reviewers have either a direct line of communication with both the client to provide insight into various people's roles, and to someone more senior who can help with the tough calls.

Technology, in the form of email threading or near-duplicate analysis, can also be extremely helpful. For those unfamiliar, both tools help group together similar emails, which will enable the reviewers to make more consistent privilege calls—thus avoiding the embarrassing situation in which you produce a duplicate copy of an email you also happen to have on your privilege log.

Another step you can take is to train your client on privilege. Three basic things you can do are:

1. Help them understand what they should label as privileged;
2. Encourage them to limit circulation when they can; and
3. Get them to explicitly state that legal advice is being requested or that something is being done at the request of counsel.

Finally, it's unlikely that you'll ever handle privilege perfectly, so remember how important (and easy) it is to have a 502(d) order in place.

If you want to read more about reducing the pain of privilege logs, consider The Facciola-Redgrave Framework (https://www.fclr.org/fclr/articles/html/2009/facciolaredgrave.pdf). If you want to stay up to date on interesting privilege decisions—and who doesn't!—you should read Todd Presnell's fantastic blog: Presnell on Privileges (https://presnellonprivileges.com/)

Todd Heffner is a construction litigator and eDiscovery specialist with Smith Currie. Contact him at [email protected].