Nothing will cause a group of young associate attorneys to groan quite like a privilege log. For most, privilege logs are deemed a necessary evil during litigation prep. However, our list of best practices will help you optimize your privilege log preparations and make your next privilege log experience painless.
Why Do We Need Privilege Logs?
It is of the utmost importance that any business that handles sensitive or protected information can quickly and accurately identify such records and protect them accordingly; it should also be noted that these businesses must be knowledgeable about what they need to do if a protected document is requested as part of discovery in litigation. Sometimes, a document requested during discovery may be considered “privileged”; meaning that it is confidential and protected from public disclosure.
However, just because a document may mention healthcare or an attorney, does not necessarily give the document privileged status. Privileged documents must include both (a) communications between attorneys and their clients regarding legal advice; and (b) communications between clients discussing legal advice given to them by an attorney (Cormack et al., 2010). Similarly, healthcare related documents must have been obtained during the course or business of treatment of a patient by a covered entity, such as a doctor’s office or insurance company.
As a brief overview, a privilege log is a document that describes and tracks documents withheld from production in a civil lawsuit because the producing party deems them to be “privileged.” Some of the most commonly claimed privileges are doctor/patient, priest/parishioner, husband/wife, and attorney/client. The Federal Rules of Civil Procedure require that a party who withholds information by claiming a privilege must expressly make the claim and describe the nature of the documents or communications being withheld in a manner that does not reveal the information itself but will still enable other parties and the court to rule on the privilege claim. The purpose of your privilege log is to identify and describe the documents you are withholding, including dates, purpose obtained, key players, and more, in order to present the best possible case for maintaining confidentiality.
As you can see, there are many nuances to privileged information. It is important that you understand and scrutinize each nuance to ensure your privilege is properly asserted.
Below we discuss the top ten best practices to ensure your privilege log process is accurate and complete.
The Top 10 Best Practices for Privilege Logs:
1. Manage & Oversee Your Privilege Logs
Oftentimes, the admittedly tedious task of creating legal privilege logs falls on the more junior members of a firm, such as administrative staff, paralegals, or associate attorneys. While, with years of training, any one of these positions could conduct a solid privilege review and develop an efficient log, human error in the early months or years of staff training can cause sensitive or protected information to slip through the cracks. Plus, the burden of retraining staff as people come and go leads to a significant time investment. It is best practice to have a skilled, long-term attorney lead a work group for privilege reviews. This, along with automated procedures, would allow new support staff to step in and learn the process much faster.
2. Accurately Identify Privileged Documents
Be methodical and specific. - When as a business or individual you claim privilege for any document, you as the record keeper are responsible for providing sufficient information to justify the assertion of that privilege. FRCP Rule 26(b)(5) requires that for any information being withheld from discovery as privileged the parties must make the claim of said privilege in writing and adequately describe the document and why it cannot be produced.
Because of this strict requirement, maintaining a rolling privilege log citing, in detail, each document to be withheld, along with dates, purpose, authors, recipients, document description, and what type of privilege is being asserted, is invaluable. Being specific and methodical in your report of privileged documents is key to maintaining a defensible privilege log.
Lastly, please remember that many privileges can be waived if shared with a third party, so as you identify your privileged documentation make sure to “follow the paper trail” to ascertain who else the information may have been shared with.
3. Establish a List of Key Individuals
If you regularly work with attorneys or patients, and frequently have documents that you know you would want to assert privilege over, it is so much easier to identify and log information generated by or related to those people. For example, flagging incoming documents by physicians or attorneys that frequently work with privileged information.
4. Group and Organize Your Privilege Log
Although the contents of each firm’s log will differ, a good general rule is to organize your log by grouping the documents as follows:
- Type of document, for example, email, letter, or memorandum
- Name of the document author and names of document recipients
- Document date
- Title or description of the document
- Subject matter of the document and purpose for which it was obtained
- The privilege claimed, for example, “attorney-client communication”
This is an area where privilege log automation would be a big time-saver. Being able to insert this information and utilize drop down lists for document type, frequent key players, and privilege asserted would make staff training and quick production of a log report easier and limit overall human error.
5. Follow Court-Specific Requirements
Determine whether the district court in your area has specific privilege log requirements. Make sure to incorporate any additional information the court or judge may want to see in any logs you submit.
6. Assert Your Privilege
Once you have identified the privileged documentation and organized your log, it is imperative to confirm that the document descriptions clearly and adequately assert why the document is protected by that privilege.
If the privilege you are claiming falls under attorney-client privilege, it would be wise for the documentation description to have language demonstrating that legal counsel was sought, provided, or discussed for the purpose of considering representation.
Similarly, for other types of privilege, the following should be clear:
- Attorney work-product privilege - the description should show that the documents were created in anticipation of litigation.
- Doctor/patient - the description should note that the document was obtained for the care and treatment of a patient
Each document description must have an identifying statement that makes it clear what privilege is being asserted.
7. Thoroughly Review
You have now identified and grouped your documentation as well as assigned applicable privileges, now you should do a thorough review. The review should have three parts: Review, Analysis for Relevance, and a Production Conclusion.
- Review: Take the time to completely review each document identified on the privilege log. A thorough review will reduce the number of documents withheld or provided in error and will make the document descriptions, dates, and information provided more accurate.
- Analysis for Relevance: Check the contents of the document to see if it responds to what the party requesting it is looking for. Please note, sometimes document requests are written as broadly as possible, so withholding due to relevancy may not always hold up in court. However, if you only have a couple of documents in your possession for the given case, patient, etc. it might be worthwhile to assert privilege if the documents in your possession have nothing to do with the request.
- Production Conclusions: After reviewing the documents, you must make the decision of what information is privileged versus what should rightfully be provided. This is an important step as wrongfully withheld documents can result in further compelling from the court and even sanctions.
8. Avoid Wrongfully Withholding Documents
It is crucial to remember that a party withholding documents that it believes to be privileged has the burden of establishing the application of the privilege. The best way to do this is to produce your privilege log. A well-organized privilege log will allow the court to conduct an in camera (in judge’s chambers) review and rule on the asserted privilege. Without a well-organized and descriptive log, it is highly probable that your privilege claim will be denied. Federal judges have ruled that blanket claims of privilege are not sufficient since they do not give the opposing party any information on what documents are being withheld, nor do they provide the court any guidance on how to rule.
9. Maintain Consistency in Withholding Documents
Consistency in your logs is critical to ensure that you do not now inadvertently produce or withhold information you previously did or did not provide. It is a good idea to establish a precedent and standard for the documents your business will consider privileged to prevent inconsistencies caused by similar documents being reviewed by different staff members. Being able to “flag” similar documents in an automated system will allow you to see if you withheld or produced the document last time the same or similar was requested.
10. Privilege Log Automation
If you are new to privilege logging or just feel that you need assistance to fully understand the process and how to be compliant; an expert consultation would be a great first step. You’ll gain a better understanding of the advanced search and analytic technologies available to you and how to leverage them to expedite your privilege review and create better logs.
Privilege Log Recommendations
Privilege logging may sound like simply putting together an excel spreadsheet, but even if you are a smaller business, maintaining a manual log of information related to 100+ clients, or even just 30 clients can be overwhelming and complex. For example, ensuring that something as simple as formatting and categorizing is consistent across your log can quickly become a major issue.
Historically, privilege logs were done manually and it was tedious work, but thankfully, in recent years, many business owners are making the move to automated logs. Innovations in technology are creating more options for automating privilege logs, including the use of artificial intelligence (AI) to expedite this arduous process.
There are many benefits to privilege review automation, such as the ability to export reports to excel for easy printing, searchable and flaggable content, and a “live” view of what your privilege log looks like day to day to allow for up-to-date and instant report generation and production conclusions. Utilizing AI-powered privilege logs has further benefits over automated logs that rely on solely on search terms. These AI logs provide a greater reduction in risk due to increased accuracy and the near elimination of human error. They also provide substantial time and resource savings as document reviews conducted with AI take significantly less time than a manual review.
To avoid an unintentional waiver of privileges, it is best practice to set up a standardized method to automatically populate elements of a privilege log,giving you a head start and assistance to avoid inconsistencies in privilege log development as well as unintentional waiver of your privileges.
For more information on automating your privilege log, please reach out.