It is especially true in complex product liability and toxic tort litigation that cases are won or lost in the trenches of discovery. One of the more mundane aspects of discovery involves the privilege log. Invariably, a significant portion of the plaintiff’s most compelling trial exhibits likely reside somewhere in the depths of the defendant’s privilege log. Conversely, the defendant must take care to draft an adequate and defensible privilege log in order to preserve its asserted privilege.
Notwithstanding the significance of the privilege log’s crucial role in document-intensive litigation, the parties are generally content with the usual, pro forma privilege log chart. The customary chart contains tight vertical columns for Bates numbers, operative dates, authoring parties, receiving parties, description and type of privilege claimed. As the document count on the privilege log rises, the preparing party often becomes less concerned with the completeness of the thousands of entries on the privilege log. Equally daunted is the receiving party, unable to grapple with the extensive and impenetrable log.
