Chapter 55 Privilege Logs

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 55

PRIVILEGE LOGS

55.1 INTRODUCTION

Litigants withholding privileged or work product-protected communications or documents usually must list and briefly describe them on what courts usually call a "privilege log."

55.2 FEDERAL AND STATE RULES

Various federal and state rules govern the log process. [55.201]

Fed. R. Civ. P. 26 does not mandate a log, although it requires litigants to describe withheld documents. [55.202]

• However, many courts' local rules explicitly require a log, and most federal courts expect litigants to file a log.

Federal courts disagree about other federal rules' requirements.

• Most courts do not sanction litigants for failing to file a log with a Rule 33 response. [55.203]

• Courts disagree about litigants' duty to log documents under Rule 34. [55.204]

• Most courts require a log under Rule 45, but disagree about the timing. [55.205]

Litigants dealing with logs must also comply with other rules, such as local "meet and confer" requirements. [55.206]

55.3 TIMING OF PRIVILEGE LOGS

Many courts require a log only after they resolve litigants' more general objections.

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• This makes sense, because it relieves litigants of the burden of preparing a log until the court better frames the issues.

55.4 REQUIRED DETAILS ABOUT WITHHELD DOCUMENTS

Most courts require certain basic information on a log, but courts disagree about other log issues. [55.401]

Because adversaries cannot view withheld documents, logs must contain sufficiently specific information to allow such adversaries to challenge the litigants' withholding or seek courts' in camera review. [55.402]

Most courts require that privilege logs include:

• The claimed protection and its basis. [55.403]

• Documents' authors, and (frequently) their role or capacity. [55.404]

• Documents' recipients and (frequently) their role or capacity—allowing courts to analyze their "need to know." [55.405]

Some courts require logs that include documents' recipients not listed in the documents themselves. [55.406]

• A few courts require logs that identify those who learned of withheld documents' substance, even if they did not receive the documents. This could create an enormous burden in many situations. [55.407]

Some courts require log entries claiming work product protection to identify the anticipated litigation. [55.408]

Some courts require additional data. [55.409]

• Examples include whether any of the authors or recipients are lawyers; number of pages in the withheld document; Bates number; cross reference to a discovery request; cross reference to the pertinent discovery request; document's location and custodian.

One court required a withholding litigant to log metadata, which could be a burdensome task. [55.410]

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Some courts impose logistical requirements, such as requiring an electronic log, placing the documents in chronological order, etc. [55.411]

55.5 LOGGING ATTACHMENTS AND EMAIL

Courts disagree about whether withholding litigants must log each attachment, and each email in a string. [55.501]

Most courts require litigants to log documents' redacted portions and marginal notes. [55.502]

Most courts require litigants to log all attachments. [55.503]

• This requirement sometimes creates additional burdens for litigants, such as explaining that an apparently unprotected letter to an adversary that was attached to a cover email actually deserves protection as an internal draft that was never sent to the adversary.

Courts disagree about whether litigants must log each email in a string. [55.504]

• Most courts specifically addressing the issue require litigants to log each email.

• Many courts do not

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