Privilege Logs in Legal Proceedings: Strategies for Trust, Verification, and Cost-Effectiveness

Privilege logging, deemed as one of the most burdensome tasks in document production according to an EDRM article by Michael Berman, involves cataloging privileged electronic stored information (ESI) to safeguard sensitive material from disclosure. 

Berman delineates four main types of privilege logs: traditional, metadata, metadata plus, and categorical logs, each with its advantages and limitations.

While traditional logs offer a detailed document-by-document listing, they can be costly and contentious due to varying opinions on required detail levels. Metadata logs, derived from litigation review databases, present a more cost-effective alternative, albeit with potential shortcomings such as inadequate subject descriptions. The metadata plus approach adds manually entered explanations during review, striking a balance between cost and verification. Categorical logs, authorized by procedural rules, categorize privileged documents, but defining categories can be challenging.

Berman proposes a modified certification approach to privilege assertion, advocating for a phased discovery process that prioritizes cooperation between parties. This approach involves transparent disclosure of privileged documents and negotiation for streamlined privilege assertion. 

Proportionality is important: perfect searches and reviews are unattainable, but even so, reasonable efforts should always be a part of a firm’s workflow. Just because perfection isn’t possible, doesn’t mean sloppiness should be acceptable. Collaboration and upfront resolution of issues, such as identifying in-house counsel’s roles and third-party disclosures, should mitigate disputes during review.

Berman’s article underscores the importance of safeguarding sensitive information while balancing the demands of litigation, and his proposed modifications to privilege assertion processes, emphasizing cooperation and proportionality, offer practical solutions for navigating the complexities of privilege logging.