Legal Memorandum: Use of a Privilege Log

Issue: Under the Federal Rules of Civil Procedure, may a privilege log be used in lieu of withheld documents?

The Federal Rules governing discovery provide a particular “procedure for asserting  claims of privilege . . . for communications or materials that would otherwise be discoverable.”  Moore’s Federal Practice, supra, at § 26.90[1].  As with other parts of Rule 26, mere broad assertions of privilege are utterly insufficient.  Id.  Moreover, “the applicable privilege must be claimed for each document withheld.”  Id.  In fact, failure to follow the prescribed procedure may subject the offending party to sanctions.  Id.

When the objecting party claims privilege with regard to numerous documents, the trial court is empowered to require the party to create, maintain and submit to the court a “privilege log.”  Id.

§ 26.90[2].  The log should contain, for each document that is the subject of an objection, a brief summary of the content of the document, the date the document was created, the name of the person who prepared the document, the person to whom the document was originally directed or for whom the document was prepared, the purpose of the document, the privilege or privileges asserted, and exactly how the document satisfies the asserted privilege or privileges.  Id.  Such a detailed log is a practical—and often the only—way for the court to determine, document by document, whether the asserted privilege applies.  For instance, in Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999), the district court ordered the defendant to provide a privilege log pursuant to Rule 26(b)(5) rather than produce documents that the plaintiff conceded were privileged; […]