Nobody likes privilege logs. With the staggering increases in the size of privilege logs because of electronically stored information, privilege review and privilege logs are now the most expensive part of discovery. And the value of the privilege log is de minimus. While the rules require the parties to notify the opposing party of any information that it being withheld on the basis privilege, in reality, it is more a game of "Gotcha" than testing the veracity of what one side is withholding from another as privileged.
Indeed, putting aside the requirement in Rule 26 of the Federal Rules of Civil Procedure, there is no reason to have a privilege log. Judges don't want to hear about the disputes or do any in camera review. Partners do not want to oversee the work on the log and associates don't want to be bothered with such mundane tasks. Clients don't want to pay significant amounts of money for something that poses only risk and no reward. And just in case you are tempted to say that we have to have privilege logs to "keep the other side honest" in their claim of privilege, you are missing the forest for the trees. There is no log for relevance and if anything that could pose a much greater risk of "hiding the ball." Maybe that is why more and more parties are agreeing to not do a privilege log in favor of other more sensible solutions.
Here are 10 things about privilege logs you never hear:
10. Partner to associate: Now that we have their privilege log, we don't need to review it. I am sure that they accurately and adequately described all of their privileged documents.
9. Associate to partner: my associate experience will not be complete until I get to work on a big privilege log project.
8. Judge to lawyer: Would anyone like me to review disputed items on their privilege log in camera this weekend?
7. In-house counsel to vice president of finance: We need to add $25,000 to the litigation budget for this case so we make sure that we have the "gold standard" of privilege logs.
6. Associate to associate: Working on this privilege log was so much fun, I can't wait to do it over.
5. Judge to lawyers: I thought I would check and see how the parties are coming with their privilege logs.
4. Associate to associate: I envy you, you always get to work on the good privilege logs.
3. In-house counsel to partner: If the judge doesn't like our privilege log, I am fine with paying for your associates to redo it.
2. Associate to partner: Our privilege log is so good, I guarantee the judge will be happy with it.
1. Partner to associate: Congratulations, we really kicked their a** with our privilege log.
Kevin Brady is a member of Eckert Seamans Cherin & Mellott, based in Wilmington, De. Email: Kbrady@eckertseamans.com.