It is no secret that the cost of litigation is soaring, primarily because of the increased use of electronic discovery and the unpredictability of continuously changing technology. However, it is interesting and necessary to note that because of the volume of electronically stored information, privilege review and the creation of a privilege log have become the most expensive part of the discovery process. The world has come to revolve around various forms of electronic communications, and in this digital age, where every second of your life can be recorded and stored, the volume of potentially discoverable information is unimaginable (think Viacom International v. YouTube, where a federal court ordered YouTube to turn over 12 terabytes of data and that was in 2008). While there are technological advances to better manage this information mass, the same cannot be said for everyone's favorite part of litigation: the privilege log.
Unlike other aspects of discovery, the privilege assertion process has not evolved to deal with the growing volume of ESI. For the most part, the privilege-logging process has remained a paper-based, document-by-document logging system. This archaic procedure causes disproportionately higher costs compared to other aspects of discovery because attorneys must review the substance of thousands of individual documents, log information about each document, and assert the basis of the privilege. While some privilege log fields can be automatically populated, such as identification requirements, like names and dates, the more difficult aspect of privilege logs the description of the basis for the asserted privilege must be manually documented by attorneys. This process is exceptionally time-consuming given the increasing volume of ESI. Indeed, in large disputes, the cost of this privilege-logging process can surpass the cost of document review.
In December 2012, the Delaware Court of Chancery announced that it was updating some procedural rules to better accommodate ESI and modernize the discovery process. The new guidelines specifically address privilege logs and the attorney's role in the privilege-logging process. The Court of Chancery emphasized that "senior lawyers" must provide "guidance about how the privilege assertion process should unfold," including guidance concerning: (1) Delaware standards for asserting privilege; (2) protocols for identifying documents that warrant a closer review for privilege; (3) protocols to ensure that Delaware standards are applied with fidelity when determining that specific documents are exempt from production on privilege grounds; and (4) Delaware requirements for providing sufficient information about the document to enable the opposing party and the court to fairly assess whether privilege has been properly asserted. The court suggests that "senior lawyers" make the final decisions on privilege questions, and put a hefty responsibility on "senior lawyers" to ensure that the guidance they provide is actually followed. In practice, this means that "when there is a hearing in the court, a senior Delaware lawyer must be able to take the podium, explain the basis for the assertion of a disputed claim of privilege, and be knowledgeable about the privilege assertion process."
The rules and the recently issued guidelines require that a party asserting privilege must describe the nature of the purportedly privileged information in a manner that, without revealing information that is itself privileged, will enable other parties to assess the propriety of the claim. The guidelines specifically discourage litigants from providing a generalized description of purportedly privileged documents and strongly suggest that each log entry should be "document specific." Following a document-by-document review, or in more cases a TIFF-by-TIFF review, is required, and logging gigabytes of information can become highly burdensome.
The exponential increase in the use of ESI has caused many logistical problems with logging privileged information. Practitioners and scholars have offered a few suggestions on how to upgrade this traditional method. Most notably, U.S. Magistrate Judge John Facciola of the District of Columbia and Jonathan Redgrave wrote a law review article suggesting the "Facciola-Redgrave framework," which proposes categorizing information to maintain more efficient privilege logs. With category logs, users log categories of information as opposed to logging each individual document. A category can correspond to a particular subject matter, type of information, or even a person. Logging with categories and sampling for accuracy reduces both time and cost when dealing with a mass of information, while still offering a sufficient level of detail about the privilege being asserted. This method is dependent on the cooperation and planning of the parties, which must discuss the anticipated volume of privileged information and work together to devise a case-specific cooperative plan and to create effective categories.
Category logs work particularly well in complex litigation, where many of the privileged documents can be categorized together by subject matter, date, author, or recipient. Categorical logging can also be used with electronic review tools, such as keyword searching, which could potentially assist lawyers in devising categorical descriptions for grouped documents. Eventually, category logs may be automatically generated. While we cannot completely automate the process, we can rely on technology to enhance this review process. For example, the use of technology/computer-assisted review can also play a role in reducing time and costs in the privilege review process.
For the largest and most complex litigations, the parties could agree to take the Facciola-Redgrave framework one step further and specifically tailor what information is included in privilege logs. For instance, the parties could request that privilege entries be limited to specific categories of attorney-client communications after a certain date, or other specified categories that are especially relevant to that litigation. This eliminates the necessity of logging every privileged document and focuses on the specific categories the parties believe are important. By using categorization, counsel can avoid reviewing each document included on the privilege log, but still provide sufficient detail to comply with court rules and guidelines. Of course, the use of a categorical privilege-log system would need to be agreed upon between parties, and it would be prudent to determine what the appropriate and necessary categories will be at the onset.
Several courts have found categorical logging to comply with the requirements of Federal Rule of Civil Procedure 26(b)(5). The U.S. District Court for the Southern District of New York, for example, has accepted category logs if a document-by-document listing would be unduly burdensome and if a more detailed description would offer no significant material benefit in determining the privileged nature. (See GenOn Mid-Atlantic LLC v. Stone & Webster, 2011 U.S. Dist. LEXIS 133724 (S.D.N.Y. Nov. 10, 2011).)
The main goal of category logging is to limit the amount of information required to be included in a privilege log to save money and time. While category logging could significantly reduce litigation costs, it is not the right solution for every case. There are some risks involved in categorical logging, such as incorrectly identifying information or placing documents in incorrect categories. These risks only further emphasize the need of the parties to establish an open and good-faith communication about the use of category logs, their advantages and their shortfalls.
Of course, any method used to log privileged information will have its shortfalls, and that is why some scholars have questioned whether privilege logs are necessary at all. In support of this argument, proponents assert that privilege logs are too expensive and too unreliable to be useful in modern litigation. They suggest that the parties can agree to forego the production of privilege logs altogether; however, whether this practice complies with Federal Rule of Civil Procedure 26(b)(5)(A), which requires that a party must expressly make a claim of privilege when withholding information otherwise discoverable, is a question for another day.
Category logs are a modern alternative to item-by-item privilege logs. While they are particularly useful in complex litigation, category logs are well suited to handle email strings and other electronic communications that would otherwise be burdensome to log individually. Because of the explosive use of email, category logs will become the standard for electronic communications. But we will have to wait to see whether category logging can be successfully applied to other types of discoverable information.
Jill Agro is an associate at Eckert Seamans Cherin & Mellott. She focuses her practice in the area of corporate and commercial litigation.