Privilege logs were never a fun part of business litigation. There are few tasks more tedious than logging individual pieces of correspondence by date, author, recipients, subject matter, reason withheld, etc. In the era of electronically stored information (ESI), the creation of a document-by-document privilege log has gone beyond mere tedium to become one of the more costly elements of an ESI burden that, by itself, may be dissuading businesses from pursuing commercial litigation at all. Something has to be done, say many, or else the burden of ESI discovery will foreclose litigation as an option for resolving modestly-sized disputes. The authors of a recent law review article, building upon the work of The Sedona Conference, think they have a solution.

The Scope of the Problem

The digitization of communication has had a transformative effect upon the process of creating written business correspondence. Before e-mail, company executives dictated or handwrote letters, got a draft back from a secretary, edited it, got a new draft, edited it, and then put the document in final form, which was signed and then mailed, faxed, or sent by overnight courier. It would take a few days to get a response. The slow, multistep nature of business communication served to limit the frequency with which written correspondence was sent. More communication took place by telephone, and went undocumented. A dispute between two companies that was incubating for a year or two before flowering into a lawsuit might involve a few hundred discrete pieces of correspondence. The task of preparing the privilege log was a small part of the process of gathering relevant documents and preparing for production. A handful of attorney hours might be consumed.

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