Let’s face it: No one went to law school dreaming of one day preparing a privilege log, much less one with hundreds or thousands of entries. But with the vast volumes of electronically stored information (ESI) common to modern litigation, and the high standard of care required to provide enough information to justify a claim of privilege on an otherwise discoverable document, many lawyers may find themselves devoting significant time to logging documents. And even with this effort, many parties may still wind up embroiled in motion practice regarding the adequacy of logs. And judges, in turn, may find themselves fielding requests for in camera review of challenged log entries. There may be some relief on the way in the form of recent decisions recognizing that proportionality principles can help determine how much detail is required in a party’s privilege logs.
Proportionality
The concept of proportionality was introduced as part of the 1983 amendments to the Federal Rules of Civil Procedure “to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.” Fed. R. Civ. P. 26 Advisory Committee Note. Concerned that the concept was not receiving adequate attention, the 2015 amendments to the Federal Rules gave more prominence to the proportionality concepts long embedded in Rule 26; as of those amendments, the concept of proportionality was moved to the very start of Rule 26(b)(1), which describes the permissible scope of discovery:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
