Tips for Maintaining a Sufficient Privilege Log

• Author: Monette Davis
• Pages: 19-20

Pretrial Practice & Discovery

American Bar Association Litigation Section

Spring 2024, Vol. 32 No. 1

© 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof maynot be

copied or disseminated in any form or by any means or stored in an electronic dat abase or retrieval system without the express written consent

of the American Bar Association.

19

Tips for Maintaining a Sufficient Privilege

Log

Monette Davis

Mar 29, 2024

Attorney-client privilege is a client's right to refuse to disclose and to prevent any other

person from disclosing confidential communications between the client and the attorney.

As it relates to discovery, a privilege log may be utilized by a party for the purpose of

withholding privileged information between the client and their attorney. However, for a

privilege log to be considered sufficient, there are guidelines that must be met by the party

claiming that the information is privileged.

Pursuant to Federal Rule of Civil Procedure 26(b)(5)(A), a party withholding information

as privileged is required to (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.

InEstate of Manship v. United States, 236 F.R.D. 291 (M.D. La.2006), the court specified that

a privilege log should not only identify the date, the author, and all recipients of each

document listed, but should also describe the document's subject matter, purpose for its

production, and specific explanation of why the document is privileged or immune from

discovery. However, if a party fails to comply with the requirements of the federal rules

and the privilege log is deemed inadequate, the claim of privilege may be rejected by the

court.

Moreover, there are three notable tips that can assist an attorney with preserving

privileged communications between them and their client. First, if an attorney believes that

communications with their client are privileged, the attorney must make a claim of

attorney-client privilege. Second, to avoid rejection of the attorney-client-privilege claim by

the court, the party asserting the claim must provide a sufficient privilege log. Particularly,

the burden of proof lies with the party asserting the privilege claim, and if the privilege log

is deemed inadequate, there is a possible risk of waiver of privilege and sanctions. Lastly, it

is important to avoid providing a conclusory description of the privileged information in