The Federal Rules of Civil Procedure require a party asserting a privilege to “describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). A party’s failure to provide timely notice that it is withholding privileged documents can result in significant consequences, including sanctions and waiving of the privilege. See1993 Advisory Committee Notes to Rule 26.
In practice, each party often compiles a privilege log that contains all the privileged documents withheld. Most of the log entries would provide the type, date, sender and recipients of the documents, along with the nature of the privilege claimed and a brief description of the basis for the privilege. Many times the description produced by a party can be as vague as “Attorney-client communication concerning [a specific subject matter].” If a document contains both privileged and nonprivileged communications, the document may be produced in redacted form, and a separate log entry may be required for each redaction. Because of the high volumes of electronically stored information, particularly emails and electronic documents, it is not uncommon in litigation today to see a privilege log with many thousands of entries.
