For years now, creating privilege logs has been associated with a tedious and expensive process that often yields little tangible benefit. Traditionally, for each document withheld on privileged grounds, parties have been providing a detailed log including date information, senders/authors, recipients (including cc/bcc), a description of the subject matter and a prima facie explanation as to why the document is privileged or otherwise protected from disclosure. Providing this level of detail for every document withheld can require a herculean effort and cost clients thousands of dollars.
Recognizing this burden associated with document-by-document privilege logging, various jurisdictions have encouraged parties to consider the use of categorical privilege logs. Nearly a quarter of a century ago, the Advisory Committee Notes to the 1993 Federal Rules of Civil Procedure amendments warned that detailed privilege logs “may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by category.” Despite this judicial encouragement, however, proposals for categorical logs are often met with resistance from opposing counsel in practice.
