The Committee on Rules of Practice and Procedure recently approved for public comment amendments to FRCP Rules 26(f)(3)(D) and 16(b)(3)(B). These amendments set out to address concerns regarding the creation of privilege logs in federal multidistrict litigation (MDL) proceedings. As a practical matter, the proposed amendments do not provide much new guidance, but perhaps they will at least have the beneficial effect of raising awareness and acceptance of alternatives to traditional document-by-document logs that often are quite expensive and burdensome to prepare, and do little or nothing to advance the resolution of disputes on their merits.
One very useful alternative is the proposed EDRM Privilege Log Protocol. That protocol was developed with the assistance of experienced plaintiffs and defense litigators and other legal professionals proficient in MDL proceedings. While the EDRM protocol leaves some logging and sampling issues “to be determined,” use of the protocol has the potential to reduce burden and costs, while still accomplishing the primary goal of allowing assessment of the accuracy of privilege determinations made by parties responding to document requests.