1. The parties are not expected to log post-litigation communications;
2. The parties are free to agree to log certain types of documents by category instead of on a document-by-document basis; and
3. With respect to email chains, parties should attempt to agree on the procedures that both sides will use.
The assertion of privilege and the creation of a privilege log has been the subject of a great deal of debate, due to the enormous and disproportional cost and time associated with handling privilege review and preparing a privilege log.
The clear message from the court through the "Discovery Guidelines" is that parties can be flexible and creative in this area. In particular, they state that the court encourages the parties to make agreements that reduce the time, expense, and burden associated with conducting a document-by-document privilege review.
Flexibility here is important. Indeed, there does not appear to be any limitation in the "Discovery Guidelines" as to how creative the parties can be in this area even to the point where the parties could agree to forgo the need for any privilege log. This "say no to privilege logs" trend is gaining momentum in many jurisdictions as a way to hold down the skyrocketing costs of addressing privilege and privilege logs.
Kevin Brady is a member of Eckert Seamans Cherin & Mellott, based in Wilmington, De. Email: Kbrady@eckertseamans.com.
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