For many lawyers, constructing an appropriate privilege log is a mere afterthought in the overall discovery process. Several reasons exist for this privilege log apathy. Some in-house counsel routinely draft or approve written discovery responses, but simply do not exhibit the same level of detailed attention to privilege log preparation. Outside counsel often delegate this perceived grunt-work task to younger attorneys. Complacency also develops when lawyers refuse to insist on a detailed privilege log from their adversaries out of fear that these adversaries will respond in kind. And some lawyers decide that legal strategy calls for keeping privilege claims intentionally vague and provide a general privilege log with no specifics.
Whatever the reason, courts are increasingly scrutinizing the adequacy of privilege logs and imposing sanctions, including waiver, for insufficient privilege log descriptions. Consequently, it is increasingly important for in-house and outside counsel to know their privilege log obligations, when a privilege log is required to be produced, and how to defend challenges to the adequacy of their privilege logs.
Ignoring one’s privilege log obligations could have dire consequences. The failure to produce a privilege log will likely result in waiver of all privileges asserted in the party’s discovery responses. Even where a party produces a privilege log, the failure to comply with courts’ requirements (and interpretations of Rule 26(b)(5)(A)) could result in sanctions under Federal Rule of Civil Procedure 37, including waiver of all asserted privileges. While some courts lament the “automatic mandatory voluntary waiver” consequence, see Magical Cruise Co. v. Dragovich, courts are increasingly finding waiver where privilege logs are insufficient.