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 (ESI), 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.
