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Large-scale commercial litigation means an equally large-scale, and likely expensive, privilege log. The 1993 and 2006 Notes of the Advisory Committee to Federal Rule of Civil Procedure 26(b)(5) recognize that in some cases a traditional privilege log may be unduly burdensome and other “voluntary arrangements may be appropriate.” Depending on the case, a voluntary arrangement may save significant time and expense.
As a starting point, the traditional privilege log is still a viable option in all cases. Rule 26(b)(5) contemplates that a privilege log will describe documents in a manner sufficient for parties to assess the claim of privilege. Typically, when counsel cannot agree to a more efficient option, the privilege log will contain a document identifier, author, recipients, date, subject matter, and the basis for the privilege assertion. Most of this data is electronically generated and exported from a review platform in some form. The document description, however, is manually generated for every document. The burden becomes apparent when you consider the cost of manually describing tens of thousands of documents and the associated quality control processes inherent to manual review.
In contrast, courts, e-discovery jurists, and commentators have urged litigants to use more efficient privilege logging means. See The Sedona Conference, The Sedona Conference Commentary on Protection of Privileged ESI, 17 Sedona Conf. J. 101 (2016). A metadata privilege log contains the same electronically generated metadata fields, but eliminates the manual description. Instead, additional metadata fields such as file name and e-mail subject are provided to describe the document. Often a metadata privilege log is a good starting point in cases with high privilege rates. The parties each produce a metadata log and then agree they may request manual document descriptions for certain documents if the party has a good faith basis to believe that category may not be privileged.
Another more efficient option is a categorical privilege log. In a categorical privilege log, the party will identify certain categories of privileged documents they are withholding and provide agreed upon electronically generated information about the documents falling into those categories. Similarly, the parties may agree that they can request a traditional privilege log for certain categories if they can articulate a good faith basis for the request.
Privilege logs are continuing to evolve as e-discovery evolves. The options available to parties have the potential for significant cost savings. However, in the absence of an agreement to rely on search terms or technology-assisted review to identify privileged documents with a liberal clawback provision, a determination of privilege is still made by an attorney. These alternative arrangements save time on the creation of the privilege log itself, but attorneys are still typically evaluating each document for the presence of the privilege. E-discovery has not yet evolved to replace the intellect of the human mind . . . rest easy, Grandma.
Chelli Robinson is Of Counsel in Nelson Mullins Riley & Scarborough LLP’s Charlotte office, where she focuses her practice on electronic discovery. Her practice includes managing e-discovery matters such as review and production, discovery issues related to privilege, and the offensive and defensive preparation of related e-discovery motions practice.
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