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| 2 minutes read

It Has Been a Privilege

Yesterday afternoon, I was privileged to have the opportunity to testify before the Advisory Committee on Civil Rules on the proposed amendments to Federal Rules of Civil Procedure 16(b) and 26(f). At first glance, those proposed amendments may seem trivial—simply adding to the topics for consideration at Rule 26(f) conferences between parties, and in Rule 16(b) orders, “the timing and method for complying with Rule 26(b)(5)(A).” Rule 26(b)(5)(A) is the rule requiring parties, when they withhold information from discovery on privilege or work product grounds, to describe “the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that… will enable other parties to assess the claim.”

Nothing in the Rules themselves requires, or even mentions, the preparation and production of document-by-document privilege logs. Yet that is the usual expectation and requirement imposed on producing parties, even though the 1993 Advisory Committee Note to the original rule suggests otherwise: “Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories….”

In my testimony to the Committee, I emphasized three points:

  1. The existing de facto system of requiring customized document-by-document privilege logs in virtually every case wastes tremendous time and money on an exercise that is not required by the Rules and is often counterproductive to the “just, speedy, and inexpensive” resolution of disputes;
  2. There are lower-burden alternatives which could more efficiently serve the purpose in most cases, including instituting better up-front communication on privilege issues, producing metadata logs (which can be generated with minimal effort), and encouraging ongoing discussions between opposing counsel that could include “drilling down” on selected sample privilege claims to verify that privilege claims are being made reasonably and with appropriate care; and
  3. Adopting a more flexible approach is even more important as emerging technology increasingly assists in identifying privileged information while avoiding erroneous privilege claims, without expending large amounts of time and money on detailed human logging.

Proportionality has been part of Rule 26(b) since 1983, but it took the 2015 amendments to give it more prominence in Rule 26(b)(1), and to focus many judges on actually applying proportionality limits to discovery. Hopefully, the latest proposed amendments, relating to privilege logs, will be adopted and have a similar positive impact in liberating many judges—and litigants—from the misconception that comprehensive, customized document-by-document privilege logs are necessary in most large cases.


e-discovery, ediscovery, federal rules, frcp, 16b, 26b, 26f, privilege, logs, discovery