July 2024 - Priv Logs 101 – Pros & Cons of the Most Common Types

In many cases, documents collected as part of discovery for an investigation, regulatory or litigation matter are identified to be responsive but may be withheld from production under a claim of privilege for any of several valid reasons. The documents must still be accounted for, listed and described in what is known as a privilege log. 

Privilege logs are the accepted method by which a party defends its claims of privilege, as they allow the opposing party to evaluate the claims and, when necessary, challenge them. While not mandated for every matter or in every jurisdiction, standard litigation and regulatory investigations in the U.S. do require them. 

The rules surrounding privilege logs have changed over time, and as a result, there are now choices in what type of privilege log a party may use. Determining which log to employ is typically based not only on the specifics of each matter but on the risk tolerance of the client. The best step is usually to meet and confer to agree with the opposing party on the appropriate approach to take. 

Let’s explore the four types of privilege logs: 

The metadata log is compiled using only that: the metadata, or electronically stored information, from the documents. It takes a minimum of effort and time to complete, as it typically doesn’t include things such as subject matter descriptions, which are standard to the other three types of logs and are often considered crucial in evaluating the claim of privilege. This log is not acceptable in every situation and will most likely require the agreement of the opposing party, but if such an agreement can be reached, this is the most cost-effective log available.

The standard privilege log is the most used and accepted log type and includes both clean, normalized metadata and work product. It does require a manual review of the documents to supplement the metadata information and create the log, and so is less cost-efficient than the metadata log. But it contains more detailed information to justify claims of privilege. 

The categorical log was once considered the next big thing, but its advancements are mostly in terms of elegance and brevity, rather than efficiency. This type of privilege log uses the same information as in a standard log, but groups documents by subject matter categories that include a date range, a range of participants and the varying file types. Because all the same information and work is required as for a standard log, it is not more cost-efficient or defensible, but categorical privilege logs are often preferable for their useful organization of the data.

Custom privilege logs are created using individualized coding and unique descriptions for each document, making this log type the most expensive to create but also the most defensible of the four options. It is not generally demanded by any courts – although there are some jurisdiction-specific requirements for creating bespoke entries for each document. While not usually insisted upon by the parties to a litigation, in recent investigations regulatory agencies such as the FTC and DOJ have been increasingly requiring logs that are more custom than standard. 

Read more about the four common types of privilege logs in an article authored by QuisLex director of legal solutions Briana Hulet, published by the ABA’s Law Technology Today here.