A privilege log is the itemised list a producing party provides of documents withheld or redacted on privilege grounds, describing each well enough for the other side to assess the claim without revealing the protected content itself. Getting that balance wrong is what generates most privilege disputes.
The tension the format has to resolve
A log entry must let the requesting party evaluate the claim, which requires detail. It must not disclose the privileged communication, which requires restraint. "Email regarding legal matter" fails the first test; a description that summarises counsel's advice fails the second and may waive the privilege it was written to protect.
A workable entry names the date, the author and every recipient, the document type, and the subject matter at a level of generality that identifies the topic without conveying the advice — plus the specific privilege asserted, which is not always the same one.
Attorney-client and work product are different claims
They are routinely logged as though interchangeable, and they are not. Attorney-client privilege protects confidential communications made for the purpose of seeking or giving legal advice. Work-product protection covers material prepared in anticipation of litigation, extends to non-attorneys working at counsel's direction, and can be overcome on a showing of substantial need.
Because the elements and the defeasibility differ, a log that asserts both indiscriminately on every entry invites a challenge to all of them.
Where in-house counsel complicates it
In-house lawyers give business advice and legal advice, frequently in the same thread. Privilege attaches to the legal, not the business — and a court asked to decide will look at the actual purpose of the communication rather than at whether a lawyer was copied.
The practical consequence is that copying the general counsel does not privilege a document, and that mixed-purpose communications need a considered call at review rather than a reflex. This is where large logs most often lose entries on challenge.
Categorical logging
Itemising every entry across a modern data set can cost more than the underlying dispute. Courts have increasingly accepted categorical logging — describing groups of similar documents rather than each one — particularly for post-complaint communications between a party and its trial counsel, which are privileged in an obvious and uninteresting way.
This is worth negotiating into the ESI protocol at the outset. Agreement afterwards is much harder, because by then one side has usually already borne the cost.
Practical failures worth avoiding
- Logging what nobody wants. Trial-counsel correspondence after filing, logged item by item, generates enormous cost and no dispute.
- Inconsistent entries. The same document family described differently across a log signals that the review was not applied uniformly, and that is what draws a sampling challenge.
- Missing recipients. An omitted recipient who turns out to be a third party can waive the claim, and the omission looks worse than the disclosure would have.
- Redaction leakage. Redactions applied to an image while the native file retains the text underneath. This happens more often than anyone would like, and the produced file contains what was meant to be withheld.
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