A privilege log is a critical component of the discovery process, documenting withheld or redacted materials to justify privilege claims while maintaining confidentiality. To ensure defensibility and efficiency, it is essential to follow structured best practices when compiling a privilege log.
What to Check in the Stipulation or ESI Protocol:
- What must be logged (example, withheld and placeholdered-only or redacted documents too)
- Metadata: What fields must be included
- Categorical Logging: Is a categorical privilege log allowed?
- Format: Excel, PDF, or another format
- Deadlines: When the log must be produced
- Sets of documents that should be excluded (for example, documents created after the date of the complaint or some other date cut off, or documents that include certain outside counsel, or specific topics).
1. Organize the Population: Start with the Correct Review Set
The first step in creating a privilege log is ensuring that you are working with a properly identified review population of documents that have already been deemed privileged. Trying to determine privilege while logging is inefficient and prone to inconsistencies.
If logging both withheld and redacted documents, it is best to separate them into distinct search populations since reviewers will be looking for different things depending on whether a document is fully withheld or redacted. Keeping them separate improves consistency and speeds up the logging process.
2. Think About the Outcome: What a Privilege Log Should Look Like
A privilege log should be clear, concise, and defensible. Here’s an example of a standard privilege log entry:
What makes this entry effective
- Contains key metadata (Bates number, date, authors, recipients).
- Clearly identifies privilege basis (attorney-client privilege, work product).
- Description follows best practices (it describes the communication without revealing privileged details).
3. Ensure You Have the Necessary Metadata
Ensure you have all relevant metadata fields to create an accurate privilege log. For some of these, the metadata included in the review tool is sufficient.
- Date
- Document type/extension
- Subject line or file name, if available.
The Author(s) and recipient(s) fields (including CC and BCC) usually have to be normalized to remove extra content such as email addresses and brackets. Additionally, attorneys should be clearly marked using a consistent method, such as an asterisk (*) or “Esq.” designation.
It’s important to cross-check attorney names against a reference list of known attorneys to avoid errors.
4. Draft Descriptions Efficiently with a Structured Workflow
A well-structured description should include:
- Document type (email, memorandum, notes).
- Who is providing or seeking legal advice (attorney-to-client, client-to-attorney).
- General subject matter of the communication (without revealing privileged content).
To maintain consistency and efficiency, use predefined subject-matter categories such as:
- Legal advice on contract negotiations
- Litigation strategy discussion
- Draft agreement prepared by counsel
- Internal legal analysis of regulatory compliance
This ensures descriptions are uniform but still specific.
5. Privilege type or basis
Finally, it’s important to have a pick list for identifying the privilege basis or type. The two most common options fall under attorney-client privilege and the work product doctrine; however, for certain projects, other types of privilege, such as common interest privilege (also called the joint defense privilege), may come into play.
6. Create a Glossary for Certainty on Attorney Identification
A common privilege logging issue is misidentifying attorneys or failing to distinguish them from non-attorney personnel. It’s also important to catch third parties whose presence might mean that a given communication is not privileged. It’s important to note that not all parties break privilege.
The privilege log glossary at a minimum should include:
- All outside counsel attorneys are involved in the matter.
- In-house counsel and their roles.
- Law firms and legal teams are associated with the case.
- Experts or third parties who are part of legal consultations (if applicable).
This is important because it prevents mistakes (e.g., logging a document as privileged when the sender was not acting in a legal capacity).
It ensures consistency across the privilege log, reducing the risk of challenges from opposing counsel.
A well-structured privilege log is efficient, accurate, and defensible. By following these best practices—organizing the population, defining metadata, standardizing descriptions, and maintaining a privilege glossary—you ensure that privilege claims are upheld while minimizing challenges from opposing parties.
