The process of creating a privilege log has evolved significantly over the past few decades. As former U.S. Magistrate Judge Andrew J. Peck remarked,

When I got on the bench in 1995, the privilege logs in a typical case [were] two to three pages, maybe 50–100 entries. Now the privilege logs are like little novels, and there may be 10,000 or more entries. That is very expensive and is often useless to the other side in figuring out what is or isn’t privileged.^[1]

His observation highlights the critical need for well-crafted, efficient privilege logs that serve the needs of all parties in litigation without becoming burdensome or unclear. This article will outline the federal rules guiding privilege logs, explore the different types of privilege logs, and provide best practices to create comprehensive and manageable logs.

Federal Rules Guiding Privilege Logs

The Federal Rules of Civil Procedure (“FRCP”) do not use the term privilege log or otherwise spell out procedures for logging privileged documents. Instead, FRCP 26(b)(5)(A)(ii) requires parties who withhold documents on the grounds of privilege to provide sufficient detail about those documents so the opposing party can assess the privilege claim. Specifically, the rule states that the withholding party must “describe the nature” of the documents, communications, or tangible things withheld “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Types of Privilege Logs

The absence of strict procedural guidance leaves much room for interpretation, prompting the emergence of various types of privilege logs tailored to different legal contexts.

A. Traditional Privilege Logs

The traditional privilege log is the most detailed and burdensome form. It requires a line-by-line description of each document, including the author, recipients, date, and a description of the subject matter sufficient to explain the claim of privilege. Traditional logs are often time-consuming and expensive to produce, particularly in large-scale litigation involving thousands of documents. Despite their complexity, they provide the most thorough level of detail, making them common in high-stakes litigation…