Avoiding Objections to Privilege Logs: Criteria for Inclusion, Descriptions, Format Options, and Technology Tools

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Thursday, August 19, 2021

Recorded event now available

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Course Materials

This CLE course will provide attendees with practical guidance on preparing and producing below-budget privilege logs that will not draw valid objections. The panelists will discuss the key components of a log, negotiating less onerous logging requirements, metadata, categorical logs, identifying flaws in adversaries' privilege logs, and how technology can reduce cost, improve quality, and prevent privilege waiver.

Description

Unless the parties stipulate otherwise, Fed. R. Civ. P. 26(b)(5)(A) mandates that when withholding an otherwise discoverable document on the grounds of privilege or other protection, responding parties must assert the basis for withholding the document and provide sufficient information to assess that claim. But within those general requirements lies substantial room for interpretation. This webinar will share best practices for generating logs that satisfy governing obligations without engaging in a costly, fully manual exercise prone to error.

The best place to start is well before the first privilege log entry is drafted. Fed. R. Civ. P. 26(f)(3)(D) expressly contemplates agreements on "issues about claims of privilege" as part of the meet-and-confer process, and parties are advised to take advantage of this opportunity to exempt whole categories of documents from logging.

Jumping ahead, counsel should serve a privilege log only after a thorough quality-control screening to identify third parties that could cause a privilege waiver. Diligent opposing counsel will scrutinize privilege logs closely.

Listen as the panel discusses these and many other strategies for avoiding costly privilege log mistakes that frustrate courts and sidetrack parties from the merits.

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Outline

  1. Introduction (purpose/importance of privilege logs)
  2. Governing rules
  3. Key privilege log components
  4. Negotiating less onerous/narrower logging requirements
    1. Redactions
    2. Partially privileged documents
    3. Email threads
    4. Post-complaint communications with outside counsel
  5. Privilege log types
    1. Traditional (document by document)
    2. Categorical
    3. Automated/metadata
  6. QC strategies
  7. Ways to leverage technology
  8. Recent cases on privilege log objections and sanctions/waiver

Benefits

The panel will review these and other issues:

  • What categories of documents should ordinarily be negotiated out of privilege logs?
  • How can technology be deployed to create internally consistent privilege logs efficiently?
  • When are metadata and/or categorical privilege logs appropriate?
  • What best practices can be gleaned from recent cases, particularly when responding to objections and seeking to avoid waiver or other sanctions?

Faculty

Grounds, Alison
Alison A. Grounds

Partner
Troutman Pepper

Ms. Grounds is a partner at Troutman Pepper based in Atlanta and is the founder and Managing Director of eMerge –...  |  Read More

Lichter, Jason
Jason Lichter

Principal
Troutman Pepper

Mr. Lichter is the Director of Discovery Services at Troutman Pepper eMerge, the firm’s wholly-owned subsidiary...  |  Read More

Campbell, Kathleen
Kathleen M. Campbell

Attorney
Troutman Pepper

Ms. Campbell represents clients in arbitration proceedings and federal and state courts at the trial and appellate...  |  Read More

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