On February 9, at the Rubenstein-Walsh CLE on Ethics and Professionalism for the Delaware State Bar Association, a panel of experts, including Vice Chancellor Cook, discussed the importance of these logs, and the care and attention to detail they require.
Privilege Logs record documents and communications that are relevant to the instant litigation, but will not be produced because they comprise confidential and privileged attorney-client communications, or attorney work product. The logs list the withheld documents, including non-privileged identifying information, and include a brief description of the document with a succinct summary of the applicable privilege.
The Delaware Court of Chancery sets a high bar for privilege logs, recognizing that they are vital to a successful litigation process and to the protection of the asserted privilege.
Key takeaways from the CLE presentation include:
- Detailed Descriptions - Delaware courts will generally not accept repetitive and generic descriptions, and the need for specific, individualized descriptions is something that Delaware counsel should discuss with the co-counsel.
- Do Not Use Stock Descriptions - Repeated descriptions across a wide variety of entries are a red flag that will raise questions as to the propriety of the asserted privilege.
- Get it Right the First Time - An expedited case schedule requires that privilege logs be correct at the outset. In other jurisdictions, initial privilege logs will include documents that may ultimately be removed from the log and produced. Expedited litigation often does not afford the time for such revisions.
- Senior Delaware Attorney Must Be Involved - While they need not draft every entry, senior attorneys should review the log, and provide meaningful input as to the assertion of privilege. These attorneys will ultimately sign off on the log's defensibility.
