A privilege log in commercial litigation describes the documents and data withheld in a lawsuit based because they contain “privileged information.” In litigation, documents may be privileged because they fall under the work product doctrine, meet the criteria for joint defense, or attorney-client privilege. A complete privilege log can keep your legal team organized and help ensure your obligations are met.  

How Are Privilege Logs Used in Discovery?

Creating a privilege log in commercial litigation can be arduous and costly —a privilege log is vital to the discovery process. While under-asserting privilege results in waiving the protections privilege offers, over-asserting it can lead to an in-camera review or require a time-consuming review of all discovery. Still, when used properly, privilege logs are an important tool to protect clients and to shield confidential information from production in a case.                                            

A privilege log should describe each privileged document that provides enough information for the adversary to reasonably assess whether the document is privileged. The log must set forth the data regarding the document and the reason the information is privileged. Each entry in a privilege log should include:

• The date of the document
• The parties, attorneys, and legal staff involved
• The privilege being asserted
• A brief description of the material being withheld      

The description of the privilege log requires significant consideration. The description might be a file name, email subject line, or brief sentence concerning the document. Each entry should be identified in a way that lets the opposing party assess it for privilege.  

Privilege Log Considerations for ESI (Electronically Stored Information)

The electronically stored information (ESI) sought in commercial litigation is usually vast — and privilege logs are integral with e-discovery. Privilege log requirements should be discussed with opposing counsel while drafting ESI protocols so all parties concur as to what the log should include and exclude. For example, parties might discuss whether redactions should be logged and how the efficiency of the logging efforts and review can be improved. 

An ESI agreement between the parties might also discuss how privileged documents can be identified, the format of the log, the types of information that should be included on the log, and how certain documents should be logged. Often, parties will also want to include a clawback provision regarding information that may have been inadvertently revealed. 

A critical strategy that can be started to save time and reduce the burden when logging privileged data might agree upon a metadata privilege log. These logs rely on the metadata extracted from the documents and can eliminate the need for entering a description for each document. Rather, the file name or subject line derived from the metadata would provide the information about the document. 

ESI and other discovery documents might also be logged categorically instead of individually. For example, the log might organize entries by communication type or subject matter. However, if the categorial log strategy is used, defined categories must be agreed upon by all parties in advance. These matters should be negotiated before logging work avoids reducing the benefits that can come with a categorical privilege log.   

Contact an Experienced New York Commercial Litigation Attorney

If you are involved in a commercial litigation matter, it’s vital to have a skilled attorney by your side who can guide you through the complexities of the e-discovery process. Brinen & Associates provides skillful representation for a broad scope of commercial matters and works diligently to ensure a successful outcome. Call (212) 330-8151 or send us a message to learn how our New York Business Law attorneys can assist you with your case.