Civil procedure update. The First Rule of Privilege Logs? Talk about Privilege Logs

• Pages: 24-24
• Date: 01 January 2026
• Published date: 01 January 2026
• Author: Daniel P. Elms
• Subject Matter: Civil Law

Published in Litigation News Volume 51, Num ber 2, Winter 202 6. © 2026 by the Amer ican Bar Ass ociation. Rep roduced with pe rmission. A ll rights reser ved. This info rmation or any po rtion thereof

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veryone knows the f‌irst rule of Fight Club is you do

not talk about Fight Club. The number of people

who know that rule likely far exceeds those who

have actually seen the movie. The litigator’s ver-

sion of Fight Club might be our privilege logs.

They are requested and provided in virtually every case but

rarely get the care and attention they deserve. And until now,

the Federal Rules of Civil Procedure have provided little guid-

ance on the how, when, and what for privilege logs.

Privilege Logs A re No Longer Par t of Fight Club

Rule 26(b)(5)(A) instructs what to do when a party withholds

information on the basis of any privilege. That party must

make the privilege claim expressly and describe the “nature”

of the documents or information withheld “in a matter that,

without revealing information itself privileged or protected,

will enable other parties to assess the claim.” Notably, and

contrary to common practice, this Rule requires compliance

without being asked. Comment 33, which accompanied the

introduction of the Rule, notes that “[t]o withhold materials

without such notice is contrary to the rule, subjects the party

to sanctions under Rule 37(b)(2), and may be viewed as a

waiver of the privilege or protection.”

Eective December 1, 2025, amendments to Rules 16 and

26 require early discussion and case management provisions

regarding parties’ privilege logs. Specif‌ically, Rule 16 now per-

mits parties to include in their proposed scheduling order

“the timing and method for complying with Rule 26(b)(5)(A).”

And Rule 26 now requires parties to include their views and

proposals on this issue as part of their proposed discovery

plan. Even though these amendments do not impose specif‌ic

privilege log requirements or timing, they command parties

to discuss and come to some agreements about how they will

be handled.

Just the Fact s, But Maybe No t All of Them

A proper privilege log is one that includes every element nec-

essary to establish the privilege asserted. Typically, a compe-

tent privilege log will include, for each withheld document,

its date, its type (e.g., email, letter, handwritten notes, etc.),

the identity and aliations of the author and recipient(s), its

topic or subject matter, and the privilege(s) asserted. For email

chains, best practice is to log each individual message sepa-

rately.

A word of caution about automatically using an email’s

“Subject” line to identify the topic of that communication.

First, some courts reject the subject line default because

it provides no assurance that it does, in fact, describe the

topic or subject matter of the email. An email subject line of

“Following Up,” for example, says nothing about whether

that communication was made for purposes of giving or

receiving legal advice. This happens most frequently when

privilege logs are left to paralegals or young lawyers without

more experienced oversight.

Worse than that, the subject line may disclose way more

than is intended. Suppose a supplier sends an email to its

outside legal counsel asking for advice on whether a pricing

agreement might be illegal, and the subject line is “Pricing

Agreement Imminent.” Now, this would be a thoughtless sub-

ject line for a client to use, but each of us has probably seen as

bad or worse.

In any event, logging an email withheld from discovery in

a price f‌ixing case by its “Pricing Agreement Imminent” sub-

ject line is a profoundly bad idea. The adversary could seek

to compel production of the document redacting all content

except its subject line (which is not privileged because it has

been disclosed). Or worse, it could seek production of the

document via a crime/fraud exception to privilege. Remember,

the content of a privilege log is probably not admissible, but it

is def‌initely not privileged.

Get It Right or S uer the Con sequences

Failure to handle privilege logs with competence can have

stinging consequences. Courts in the Ninth Circuit, for

example, suggest four options when a party provides aninad-

equateor untimelyprivilege log: (1) give the party another

chance to submit a more detailed log; (2) deem the inadequate

log a waiver of the privilege; (3) inspect in camera all of the

withheld documents; and (4) inspect in camera a sample of the

withheld documents.

The f‌irst option is to permit a do-over, which is not a huge

penalty except that it may cause a client to pay for the same

process twice. The remaining options are all bad, particularly

the potential waiver of privilege. I suspect the more draco-

nian penalties are reserved for those litigants who appear to

be hiding damaging documents behind false or overstretched

privilege claims. Regardless, a lawyer may not want a court

to review some or all of its client’s privileged documents, and

they for sure do not want to explain to a client that privilege

has been waived.

The recent amendments to Rules 16 and 26 demand earlier

discussion and planning about how parties will log their privi-

leged documents. This is also an opportunity for counsel to

rethink the practical and strategic aspects of how their privi-

lege logs are created and the information they do and do not

reveal.

The First Rule of Privilege Logs?

Talk about Privilege Logs

By Daniel P. Elms, Litigation News Immediate Past Editor-in-Chief

WINTER 202 6 • VOL. 51 NO. 2

24 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE