The difficulty of handling privilege disputes can be especially pronounced in cases involving a prolonged discovery period and large corporate defendants with different document custodians. When a party chooses to withhold information from a discovery production on the basis of privilege, the withholding party is required to claim privilege and describe the nature of the privileged information in the form of a privilege log. This process often becomes expensive and incredibly time-consuming.

While expenses related to privilege review and privilege logs are not entirely avoidable, there are some ways to reduce these costs. It is important, however, for counsel to negotiate with opposing counsel the scope of privilege review and privilege logs at the outset of the discovery process. Paying attention to these issues early on can be an important factor in a successful litigation, while also keeping costs in check.

Privilege Reviews

Federal Rule of Civil Procedure (“Rule”) 26(b) allows “privileged matter” to be excluded from the scope of litigation discovery. The most common type of privilege asserted is attorney-client. Attorney-client privilege is defined as “a [written or oral] communication made between privileged persons in confidence for the purpose of seeking, obtaining, or providing legal assistance to the client.”

Reviewing a large number of documents can be costly and time-consuming given the number of hours and attorneys required for this process. The costs of identifying potentially privileged communications in large document populations can, however, be reduced by using machine learning. Machine learning can dramatically reduce the number of documents subject to a more detailed review, and it can do so more effectively than search terms. This can also reduce the number of reviewers and attorney hours needed, resulting in an overall reduction in spending.

However, using machine learning requires substantial training to reliably identify potentially privileged communications. Moreover, privilege determinations can be difficult and, as with manual review, some privileged communications can be missed. Therefore, it is important to prevent an automatic waiver of privilege by, for example, entering a clawback order under Federal Rule of Evidence 502(d).

Privilege Logs

Creating a privilege log is one of the most labor-intensive and expensive parts of the discovery process. The Federal Rules of Civil Procedure do not use the term “log” or otherwise lay out logging procedures. Instead, Rule 26(b)(5)(A)(ii) requires the withholding party to “describe the nature” of withheld documents “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Customarily, documents withheld on the basis of privilege are described on a document-by-document basis on a privilege log. The log typically lists the author, recipient, dates, subject matter, and other information sufficient for the other party to assess the privilege. While distinct descriptions of each document allow the receiving party to evaluate the privilege basis for each document, traditional privilege logs are burdensome to prepare in both time and expense, particularly in matters with large volumes of privileged documents. Using alternatives to traditional logs can reduce the time and expenses of creating traditional privilege logs.

Alternative Cost-Saving Privilege Logs

• Metadata Privilege Log: One option to reduce the burden of privilege logging is to agree on the exchange of metadata fields with opposing counsel. By doing so, the producing party would not need to manually prepare a customized description of each document and the reasons for the privilege assertion. Typically, fields included in a metadata log are date, author, recipients, document type or file extension (g., .doc), and title or subject line (or file name). Metadata privilege logs can be created expeditiously, thus resulting in significant cost savings (especially in cases with a large volume of documents). However, it is likely still necessary for an attorney to review the title or subject field to ensure that they do not reveal privileged information. Doing so, however, would be significantly less work than drafting a document description for each entry.
• Categorical Privilege Log: Another cost-saving option is to log related items by categories, rather than by individual entries. Categorical logs can be organized by subject matter (such as communications related to contract approval) or communication type (such as communication between the client and outside counsel related to a specific litigation). Using this approach can save significant time and expense. Categorical privilege logging should, however, be negotiated with opposing counsel before privilege log work begins so that the agreed upon categories can be identified during privilege review.
• Phased Privilege Log: A third alternative to reduce the burden of traditional privilege logging is to log related items by categories and agree with opposing counsel to only log further information for certain controversial categories, such as specific kinds of communication with in-house counsel.

Privilege review and privilege logs can be time-consuming and costly to produce. Current document review platforms and techniques can result in a fair amount of saved time and expenses. However, even with improved technology, attorneys must continue to be careful with quality control.