ESI Protocols Part IX: Negotiating a Privilege Log You Can Live With

The following is Part IX in a multi-part series on how to draft and leverage an ESI protocol in any litigation. Part I of our series discussed the When, How and Why in planning for and creating your ESI protocol. Part II addressed the Key Components of an ESI Protocol, Part III walked through the Top 10 Situations You Can Avoid with a Protocol, and Part IV discussed Planning for the Production of Social Media. Part V covered the importance of including Manner of Production in your protocols, Part VI discussed the value of metadata and what to ask for, Part VII covered Form of Production, Why it’s Crucial and What to Include, and Part VIII discussed how to handle search term negotiations.

In conjunction with this series, eDiscovery Assistant has created a new section in Checklists and Forms titled ESI Protocols that will include new content with each part of this series. That section includes sample ESI protocols, checklists on what to include and a list of metadata fields for inclusion in your protocol.

Ah the privilege log. If you are handling privilege logs on a regular basis, you either grimaced at the title of this post, or you hoped for divine wisdom to make your life easier. Alas, I’m afraid I grimaced even at drafting the title, but I do have some small nuggets to give you and some new avenues to think about when negotiating privilege logs that will, at the very least, prevent you from missing out on key information and facilitate the process of creating them to reduce time and expense.

If privilege logs are something that rarely enter your mind, I encourage you to read this post and consider whether you may need to increase the importance of them for your cases.

Now, does the concept of the privilege log NEED to be included in the ESI Protocol? The easy answer is no, it doesn’t, but it makes sense to include it there since the protocol is governing the production of ESI, and what I suggest below means that you can add the information needed for a privilege log during first pass review if you think through and set it up correctly. It also keeps all the parameters about the production of ESI in one place.

FRCP 26(b)(5) governs the requirements of a privilege log:

(5) Claiming Privilege Or Protecting Trial-Preparation Materials.

(A) 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.

In addition to Rule 26 (or its state equivalent), many judges have individual or local orders that dictate both the content of and timing when privilege logs must be provided. See the list below for more info on timing.

Most of the time, we happily go along with Rule 26 and any persuasive court authority on what needs to be included in a log. But the advent of ESI for the last 15 years means that there is significantly more data, and as a result, there are also significantly more privilege related issues that need to be considered. Quite frankly, I believe the rules need to reconsider being more explicit about what is required in a log to avoid some of the unnecessary squirmishes I’ve seen on this issue.

Now, some of those privilege related issues are limited to more sophisticated commercial litigation, but in reality, I see privilege issues in almost every matter I touch, whether for plaintiff or defense, small or large, complex or simple. Long story short, the technology that we use to review and produce documents allows us to create an electronic privilege log that can be produced with the push of a few buttons, and there’s no reason not to provide it or ask for it.

For example, collecting a user’s inbox at any organization in which that user may have received emails to or from:

• in-house counsel on unrelated matters,
• in-house counsel related to the matter, but that are business advice and not legal advice
• third party providers who are implementing legal advice but may or may not have privileged protection in the jurisdiction where the matter is pending
• outside counsel on unrelated matters,
• outside counsel on the pending matter PRIOR to the filing of the complaint, or
• outside counsel on the pending matter AFTER the filing of the complaint.

We’ve also been seeing more and more that corporate individuals are using text messages, WhatsApp and other platforms to exchange messages, so each platform will require its own search protocol for identifying privileged information. For example, when a platform only has phone numbers, you’ll need to have the phone numbers of counsel to ensure those are captured.

There are also multiple considerations on the types of privileges and circumstances where waiver can come into play that’s beyond the scope of this post, but that you’ll want to consider. I’ll be participating in a discussion of these issues at the upcoming Relativity Fest 2021 on October 4, 2021 in the session Cone of Silence: Legal Developments on the Attorney-Client Privilege. If you’re attending Fest (it’s virtual and free), please join us.

So, how do you account for privilege issues in a privilege log within an ESI protocol?
The first step is to consider all the practical issues associated with the log and how the facts of your case may impact the following:

1. Date Range of Entries to be Recorded. Typically, parties do not require the producing party to include attorney-client privileged communications after the date of the filing of the complaint. Most of the time in litigation, the conduct that spurred the claims is in the past, and while you will certainly have communications that are privileged discussing the matter after the date of filing, parties typically agree that privileged communications post-complaint are not logged. That can change if the facts that are relevant to your case are ongoing, or if there’s a separate reason to require them.
2. What Should be Included in Log. As I noted with the language of Rule 26 above, the courts require enough information to allow the receiving party to understand the basis for the claim. What that means for each case depends on the sources of ESI at issue. Most parties interpret that language to provide the author and recipients, date sent, summary of the content of the document, and the basis for asserting privilege, as well as any additional information required by the court. The summary of the content can often be where the time and expense of creating a log comes into play. Emails are easier in theory — they have a subject line that can be listed on a log. But what about when the 5th email on string of ten has is marked privileged and has nothing to do with the original subject line? That’s when you need to require a breakdown of what is privileged and why. Consider using these fields for your team to complete during first pass review on your ediscovery platform, then link them together in the final excel spreadsheet as one column:
   • Description of Privileged Substance — information that describes the content
   • Description of Privilege Name — this is who generated or received the request for legal advice
   • Privilege Description — a short description of who is requesting information from whom and about what
   • Privilege Basis — Attorney-Client Privilege or Attorney Work Product
   • Privilege Substance Notes — Optional and notes for the producing party’s use about what the content is
   • Privilege Substance Regarding — Optional and notes about what the privileged material is regarding, for example “sales information, payroll records, email accounts” etc.
3. Timing of Delivering Privilege Logs. The big issue here is whether the parties will exchange a privilege log within a set timeframe after each production (say 30 days), or if the parties agree to provide one complete log of all documents withheld for privilege at the close of discovery. That may turn on the Judge’s order— more and more judges are requiring a log for each production within a reasonable time—or it may turn on how long discovery is and whether the parties have similar discovery obligations. When asymmetrical litigation is at play, things get more complicated.

Planning for identifying privileged information and creating a log needs to happen when you first start a matter. We create privilege filters for clients and update them regularly. That’s step one. Step two is thinking through what you will need from a privilege log from the other side, and what you will provide, as well as what unique considerations you may need in terms of fields for specific types of ESI you know will come up in the case. Step 3 is negotiating the scope of the log — whether in your ESI protocol or elsewhere. Step 4 is to plan your review to create the fields you need for your privilege log and have dedicated reviewers for a second pass privilege review to ensure it’s ready to go upon production or soon thereafter.

Including the privilege log scope and production considerations in your ESI protocol allows the parties to understand the full scope of what is required, and has the judge sign off on it. That makes enforcing it easier and erases any doubts about the parties’ obligations.

Planning for privilege issues starts before litigation. Know your clients, create filters, understand the privilege issues that recur over and over again so you can anticipate them, know the law on privilege and meet your obligations to create and produce a log that complies with your obligations.