Revamping Privilege Logging: A Look at Proposed Amendments to Civil Rules 16 and 26

Privilege logs have long been a source of motion practice and expense in litigation. As the 2006 Committee Notes to Rule 26(b)(5) of the Federal Rules of Civil Procedure acknowledge, “the risk of privilege waiver, and the work necessary to avoid it, add to the costs and delay of discovery.” In August 2023, the Advisory Committee on Civil Rules proposed amendments to Rules 16 and 26 that would require parties to develop “the timing and method” for complying with Rule 26(b)(5)(A) in the parties’ Rule 16 scheduling order, presumably in hopes of avoiding problems later. Admin. Off. of U.S. Cts., Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure, pp. 107, 109 (Aug. 2023) (hereinafter “Proposed Amendments”). These proposed changes attempt to streamline the process of asserting claims of privilege while simultaneously balancing often-divergent views on how to achieve that aim.

Current State of Privilege Logging in Massachusetts Federal Court

Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure requires a party withholding information based on privilege or protection as trial-preparation materials to “provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.” Specifically, “the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” As the 1993 Committee Note states, Rule 26(b)(5) “does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection,” and suggests that, whereas detailed logging “may be appropriate if only a few items are withheld, [such an approach] may be unduly burdensome when voluminous documents are claimed to be privileged or protected ….” Fed. R. Civ. P. 26(f), Notes of Advisory Committee on Rules—1993 Amendment.

Some local rules are amenable to alternative privilege logs. For example, the Southern and Eastern District Courts of New York encourage parties to consider categorical log or metadata logs, when appropriate. S.D.N.Y. and E.D.N.Y. Joint Local Rule 26.2(c); see also id. at 26.2(c)(1) (“when a party is asserting privilege on the same basis with respect to multiple documents, it is presumptively proper to provide the information required by this rule by group or category”). While the local rules for the District of Massachusetts do not suggest use of alternative logging, case law in Massachusetts does not require a particular privilege log format. D. Mass L.R. 34.1(e); Bacchi v. Mass. Mut. Life Ins. Co., 110 F. Supp. 3d 270, 274 (D. Mass. 2015);   Neelon v. Krueger, No. 12-CV-11198-IT, 2015 WL 1037992, at *3 (D. Mass. Mar. 10, 2015) (“categorical log may be allowable if thorough review is still possible”). Nonetheless, document-by-document privilege logging remains the traditional privilege log format and discussions about the form a privilege log will take typically happens well into the litigation.

Proposed Amendments Would Require Early Discussion of Privilege Logging

Although the 2006 Committee Note to Rule 26(f) recommended that parties address issues concerning privilege during the Rule 26(f) conference, parties rarely follow that recommendation. If, however, the proposed amendments go into effect, the parties’ discovery plan would be required to state the parties’ proposal on “the timing and method for complying with Rule 26(b)(5)(A)” and the court would be required to include such provisions in the scheduling or case management order. Proposed Amendments, at 108; see also id. at 109 (“Early attention to the particulars on this subject can avoid problems later in the litigation by establishing case-specific procedures up front.”).

The proposed amendments provide no specific articulation as to what aspects of the “timing and method” of privilege logging must be discussed and agreed upon. Instead, by design, the proposed amendments “seek [] to grant the parties maximum flexibility in designing an appropriate method for identifying the grounds for withholding materials.” Proposed Amendments, at 108 (describing further “No one-size-fits-all approach would actually be suitable in all cases.”).

The proposed Committee Notes accompanying the amendments include observations about the “undue burdens” of privilege logging and methods of ameliorating those burdens,  suggesting, for example, that a “categorical approach” may be more effective than listing every document, thus “reduc[ing] the frequency of claims that producing parties have over-designated responsive materials.” Proposed Amendments, at 108.

Comments to the Proposed Amendments 

During the comment period, which ended February 16, 2024, the Advisory Committee on Civil Rules received many written comments on the proposed amendments to Rules 16 and 26. The Rules in their Proposed form and the comments received may be viewed on the website of the U.S. Courts. The comments may be grouped into the following categories. 

Is the Rule 26(f) Conference Too Early? 

Some comments to the amendments voice concern that the Rule 26(f) Conference occurs too early in litigation for the parties to have a meaningful discussion with respect to privilege logging, when the scope of discovery is yet unknown. See, e.g., Admin. Off. of U.S. Cts., Comments from the August 2023 Publication of Proposed Amendments to Federal Rules, pp. 3-13, 640-47, 650-52 (Feb. 2024) (hereinafter “Comments”). For example, custodians have not been identified, the relationships between parties and counsel are not fully understood, and the volume and complexity of privileged information is uncertain.

The critics contend that without this critical information, any arrangement the parties reach will be premature and force parties to reach hasty and uninformed agreements on privilege protocol, which may be “so generic as to be unhelpful,” “may cause additional disputes,” or may “creat[e] perverse incentives for gamesmanship.” Id. at 5, 646, 650.

To address the concern regarding timing, another comment recommends recognizing situations where the Rule 26(f) conference is “too early in the process to address the method of generating a privilege log” and suggests that, in those cases, “the parties should identify when they believe they will be in a position to meaningfully have a meet-and-confer session on the topic.” Id. at 95. “The court must then be prepared to address any disputes at a later scheduling conference.” Id.

Is more clarity needed as to what methods of privilege logging are suitable? 

Other written comments criticize the proposed amendments for not going far enough—specifically, for failing to clarify the substantive standard for complying with Rule 26(b)(5)(A). They argue that the existing rule, enacted in the era of paper discovery, needs updating to address the realities of modern electronic discovery and to recognize alternative methods of maintaining a privilege claim; for example, categorial logs, metadata logs, and top-level logging for email threads.

Should the Rules be Amended at all?

While some stakeholders are eager for dramatic changes to Rule 26(b)(5), not all share that view. Some comments commend the Advisory Committee’s measured approach preserving the status quo with respect to Rule 26(b)(5). See, e.g., Comments, at 307-10, 473-80, 621-627. Generally, two concerns seem to underly their desire to keep the rule as-is. First, the concern is that without document-by-document logging, it would be difficult to evaluate the appropriateness of the privilege asserted. In their view, over-designation of “privileged” documents is already a problem—and it would only be exacerbated in the absence of document-by-document privilege logs. The second concern is that alternative logging methods, such as categorical logs, would enable bad actors to hide information.

Proposed Amendments Potentially Take Effect December 2025 

Following public comment, the Advisory Committee on Civil Rules met on April 9, 2024, to consider the proposed amendments and comments. Admin. Off. of U.S. Cts., Report of the Advisory Committee on Civil Rules, p. 1 (May 2024). The Committee voted to recommend for final approval the proposed amendments as published with minor changes to the committee notes to shorten them and “avoid[] taking positions on many of the issues raised by participants in the public comment process.” Id. at 2, 5, 7, 12. Specifically, the post-public-comment revisions to the Committee Notes included deleting any mention of particular logging methods (e.g., “document-by-document,” “categorical”), as well as removing references to over-designation of responsive materials.  Id. at 7-8.

The proposed amendments then moved to the Standing Committee for consideration. At a meeting on June 4, 2024, the Standing Committee unanimously approved the Advisory Committee’s recommendations as to the amendments to Rules 16 and 26. Admin. Off. of U.S. Cts., Standing Committee Report to the Judicial Conference, p. 11 (Sept. 2024). Now, the proposed rules move forward to the Judicial Conference for consideration, after which they must be approved by the Supreme Court and passed into law by Congress. At the earliest, the proposed amendments to Rules 16 and 26 (or some modified version thereof) would go into effect on December 1, 2025. Admin. Off. of U.S. Cts., Pending Rules and Forms Amendments.