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Nicole LeBeau is a staff attorney in the law firm of McDermott Will & Emery LLP and is based in the Firm's Chicago office. She focuses her practice on complex civil litigation.
Privilege log drafting is a crucial part of the litigation discovery process. In today's changing eDiscovery landscape, attorneys must dedicate adequate time to producing a log that can withstand close judicial review.
Courts are scrutinizing the adequacy of privilege log descriptions with increasing intensity and imposing sanctions--including the significant sanction of privilege waiver--for what they view as deficient privilege log descriptions.
In SmartPhone Technologies LLC v. Apple Inc., the court determined that SmartPhone's privilege log was deficient. The court found the privilege log:
(1) failed to identify the positions of the senders and recipients of documents and also used “et al.” to indicate further dissemination of the documents; and,
The court's criticism essentially focused on a lack of specificity.
While trial lawyers have long struggled with balancing the legal requirements of sufficient specificity with the strategic goal of protecting a client's privileged information, the rising volume of documents in today's world of emails and electronically stored information (ESI) makes that balancing act particularly difficult.
Federal Rule of Civil Procedure 26(b)(5)(A) requires that privilege log entries enable parties to assess claims while not revealing privileged or protected information. The Rule's purpose, in part, is to reduce the need for judges to review documents in camera to assess a party's privilege claim.
Ensuring compliance with the Rule can be accomplished by utilizing litigation technology. The same technology that drives the meteoric rise in document volume during discovery can be used to help draft compliant privilege logs.
Attorneys should start by understanding that analyzing documents to determine the validity of a privilege claim is crucial.
Due to the volume of documents being reviewed in some cases, managing attorneys often find it easier to instruct contract or junior level attorneys to apply privilege liberally, to the point of over-breadth. Doing so leads to numerous entries on the privilege log premised on a flawed understanding of privilege: that any communication between an attorney and a client is privileged.
Attorneys employing this strategy should also implement a strong second level review on privilege documents before adding them to a privilege log. Minimizing the number of documents on the privilege log to those which are truly privileged will make the task of creating privilege log entries less painful.
Litigation technology can provide a quick quality control check for the documents intended to be place in the privilege log, and can help to easily parse the domains on the emails to ensure that there are no domains that would break privilege in those documents.
Typically, this is done by creating a saved search of all the documents currently marked privileged. Then, technology can easily manipulate the metadata contained in the “To,” “From,” and “CC” fields to eliminate the portion of the email address related to the specific user and leave the domains that were found in those fields. This allows the reviewer to quickly identify any domains that could present an issue to the privilege claim.
Once a document is deemed privileged, attorneys must craft a privilege log description that properly comports with Rule 26 and relates to specific contents of a particular document.
Litigation technology has enabled attorneys to create pre-existing choices from which to select when forming a privilege log description, sometimes referred to as a “privilege log builder.”
This process causes many documents on a privilege log to have identical privilege descriptions, creating the appearance that the descriptions were simply cut and pasted for different entries.
While some parts of the descriptions can be adequately defined using a privilege log builder (i.e. document type, author, and recipients), the drafting of other portions of the description, such as the subject matter, should be left to the reviewing attorney.
Before rejecting this approach as too time-consuming, remember that many attorneys spend more time trying to determine which subject matter a document falls under than they would drafting their own subject matter description.
Technology has other ways to improve privilege log description-drafting.
First, the use of highlighted terms can significantly reduce the amount of time this task requires. Not only can attorneys' names be highlighted to easily identify a potential basis for the privilege, but important terms relating to the case can also be highlighted to quickly identify the subject matter of the privileged document.
Second, most document reviews implement issue coding as a way to categorize documents for future stages of the litigation, such as depositions or exhibits. Issue coding can also be used when drafting a privilege log description.
For example, attorneys can run a search for all documents that have been tagged for specific issues. When drafting the privilege descriptions for the documents contained in these specific issue searches, attorneys will already have an idea of the topic, resulting in a more focused and quicker process. This approach allows attorneys to get a quick overview of documents without having to re-review the entire document set numerous times.
Given recent legal developments, it appears that jurisdictions are going to take a closer look at privilege log requirements. California, for example, has specifically addressed this issue in California Code of Civil Procedure Section 2031.240, which was amended with Assembly Bill 1354 to require privilege claims to “provide sufficient factual information for other parties to evaluate the merits of the claim.”
In light of courts' recent holdings in the area of eDiscovery and privilege logs, it is important for attorneys to realize that using technology to aid in the creation of privilege log entries does not mean the descriptions should be repetitive or generic.
In Fleisher v. Phoenix Life Insurance Company, 2013 BL 609 (S.D.N.Y., Jan. 13, 2013), the court granted plaintiff's motion to compel documents withheld for privilege, reasoning that defendant provided only general arguments for their assertion of privilege, thus failing to meet their burden. The court specifically stated that the defendant gave the court “no basis for differentiating between those documents that might be related to its legal concerns and those that are business-oriented.” Id.
Similarly, the court in Lamendola v. Raposa, 2013 BL 79666 (R.I. Super. Ct., March 21, 2013), required that the privilege log state with particularity the subject matter of the communication or the grounds for the particular privilege being asserted. The court conditionally granted the movant's motions to compel unless the objecting party provided a sufficient log that would allow the court to determine whether the claim of privilege was facially valid.
The good news is that technology can be used to save time on searching and organizing data. Time can instead be re-allocated toward drafting more precise and defensible privilege log descriptions.
The privilege log process will be made less burdensome by planning ahead to examine the jurisdiction's rules and understanding the role of technology to establish a solid document review protocol.
Thus, while attorneys should study the rules and recent developments in their own jurisdiction, they should also be reassured that technology can assist in generating faster, more descriptive, and more compliant privilege logs.
1 No. 6:10cv74 LED-JDL Patent Case, 2013 BL 55916 (E.D. Tex.)
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