Privilege log
- Privilege log
A schedule listing the documents a party has withheld from production and stating the basis for withholding each one, in enough detail for the other side to assess the claim without disclosing the privileged content itself.
What it typically contains
Practice varies by jurisdiction and by the governing order, but a log entry generally identifies the document by date, author, recipients including anyone copied, a description of the subject matter that does not reveal the privileged communication, the privilege asserted, and the Bates number or range if the document was numbered before it was pulled.
The tension is inherent: the description has to be specific enough that the claim can be evaluated, and general enough that it does not disclose the thing being protected.
Why email makes it hard
Volume, mostly. Privileged email is not a discrete category of document; it is a scattering of individual messages inside threads that are otherwise responsive and not privileged.
Three recurring problems:
Threads mix. A single thread can contain responsive business correspondence and, three replies in, a message copying counsel. The thread does not become privileged; the individual message may be.
Copying counsel is not a spell. A business email does not become privileged because a lawyer was CC’d. The question is whether the communication was made for the purpose of obtaining or providing legal advice, and blanket assertions over everything a lawyer touched are a common source of motions to compel.
Attachments are separate documents. A privileged cover message may transmit an unprivileged attachment, and the analysis runs on each separately.
Number first, pull second
The workflow point that saves the most trouble: number the complete set, including documents you intend to withhold, then pull the withheld documents and log them by their assigned Bates numbers.
Doing it the other way round leaves the withheld documents with no stable identifier, which makes the log harder to write, harder to check, and awkward to amend if a privilege claim is later withdrawn. The gaps in the produced sequence are expected, and the log is what accounts for them.