This privilege log checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy. When withholding relevant documents under claims of attorney-client privilege or attorney work product, production of a privilege log documenting the withheld documents is required.
- Produce a log providing sufficient details for each item withheld to substantiate the claim of privilege or work product.
- Ensure that the description of each document fully sets forth the basis for the claim of privilege or work product. For example, that an email between two non attorneys withheld as privileged explains that Employee A is relaying legal advice from and at the request of Attorney B to Employee C.
- See sample privilege log, below, for format and information to be included.
Thoughts & Best Practices:
- While there is no express timing requirement for producgtion of privilege logs, they should generally be produced with or shortly after initial production pursuant to Rule 26(a)(1) or when responding to discovery requests. A privilege log production schedule is appropriate for negotiation and inclusion in the Case Management Order.
- In Colorado state courts, C.R.C.P. 26(b)(5) requires only that the withholding party "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privielged or protected, will enable other parties to assess the applicability of the privilege or protection." What minimal case law interprets this rule provides no additional insights. See, e.g., Cardenas v. Jerath, 180 P.3d 415, 418 (Colo. 2008). However, federal case law (below) may be persuasive.
- In Federal Court (D. Colo.), F.R.C.P. states that a the withholding party must "describe the nature of the documents, communications, or tangigle things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim." F.R.C.P. 26(b)(5)(A)(ii). At a minimum, this means "the author or origin of the document; any documents or materials attached to the document; all recipients of the document, including addressees and persons or entities receiving copies; the date of origin of the document; and a description on the contents of the document in sufficient detail as to reveal why it is subject to the asserted privilege." Wildearth Guardians v. U.S. Forest Service, --- F. Supp. 2d ----, at *16 2010 WL 1413112 (D. Colo. April 1, 2010). The party withholding documents has the burden of providing sufficient information in its privilege log to establish the privilege, or risks waiver. Id.
- It can be particularly tricky to correctly deal with email chains where multiple parties are "to:" and "cc:", and there are several replies including different addressee lists. A good rule of thumb is that each message should be identified and the claim of privilege or work product described as a separate document so that claims can be properly evaluated as to each segment of the email. It may be adviseable to break down "to:", "cc:" and "bcc:" recipients if necessary to show that an attorney was a primary recipient of a communication, rather than merely copied on the email. See U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994) ("A corporation cannot be permitted to insulate its files from discovery simply by sending a 'cc' to in-house counsel").
- When listing the authors or recipients of documents or communications, it is best to identify (ideally in a legend) who they are, who they work for, and if they are an attorney (or work for an attorney).
- Consider whether it may be appropriate, especially where documents are non-damaging and there is a dispute as to the claim of privilege or work product, to produce the documents pursuant to a non-waiver agreement.
- See Motion for In Camera Examination or Review Checklist for information about disputes regarding privilege logs.
- Click Here for Sample Privilege Log (Locked)
- Click Here for Publicly Editable Privilege Log (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado. Visit www.vail-law.com for more information.
This privilege log checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.