Date: Tuesday, March 19, 2024
Time: 12:00 to 1:30 p.m. EDT
Privilege logs are designed to satisfy the procedural requirement whereby a responding party that withholds from production otherwise discoverable documents or information based on a claim of privilege or protection must expressly state so with enough particularity to permit the requesting party to assess the claim, but without revealing the documents or information said to be privileged or protected. The Federal Rules of Civil Procedure, however, do not specific how the responding party must satisfy its obligation. This ambiguity has led to responding parties employing a variety of approaches to substantiate their assertions of privilege, some of which can be more problematic than others.
Given the sheer volumes and complexity of electronically stored information involved in discovery, the preparation of compliant privilege logs can be difficult, time-consuming and costly. But the privilege logging process can also raise burdensome issues for the requesting party related to the amount and nature of information on the log and its abiity to perform a timely analysis of the assertions of privilege.
The competing interests and countervailing burdens and rights of requesting and responding parties in discovery can lead to disputes about how and when a responding party will substantiate its assertions of privilege, and if a privilege log is used, whether the form and content of the log are sufficient. The Sedona Conference Commentary on Privilege Logs outlines the burdens associated with privilege logs for both responding and requesting parties and presents tools and strategies that can mitigate them. The Commentary suggests excluding of certain categories of documents from privilege logging altogether, and considering alternative formats, such as a metadata-plus-topic log, to streamline the process.
The Commentary is available here for free download: https://thesedonaconference.org/publication/Commentary_on_Privilege_Logs.
Members of the Commentary's drafting team will present key takeaways and solicit feedback and questions in a webinar on March 19, at 12:00 p.m. EDT.
Working Group 1 also invites written comments through March 31, 2024, to [email protected].
Host
Kenneth J. Withers
The Sedona Conference
Phoenix, AZ, USA
