Sunday, March 15, 2015

Privilege logs: the nemesis of associates (and clients) everywhere. From personal experience, I can tell you a privilege log involving thousands of entries can take up weeks of an associate’s time, costing the client tens of thousands of dollars. In most states, privileged documents must be individually reviewed, tagged, and logged with the privilege stated. Technology has relieved some of the time and cost burden through the ability to eliminate duplicates within a privilege set, but the reduction is often insignificant.

Notably, courts are beginning to recognize the time and fees associated with the modern day e-discovery privilege log and are taking action. New York State’s Commercial Division recently adopted Rule 11-b[1], which delineates a categorical approach to privilege logging. While the rule mentions sampling, the default methodology requires that all documents be reviewed and categorized, allowing uninterrupted email chains to be treated as a single document. Categorical privilege logs may be the log of the present, while an email threaded approach may be the log of the future. A threaded approach involves grouping emails into conversations for review starting with the last email, therefore capturing all those that came before it. It works like this: first, the potentially privileged universe is identified, then the emails are threaded and, finally, the email conversations are batched for review. All non-inclusive email chains (those earlier in the thread) would be treated as duplicates and their basis for privilege would represented as a part of the last email’s log entry without redundant, individual logging.

Although this method may sound like technical mumbo jumbo to most, the time and cost savings are real. Clients are pushing back on their firms to give them the most effective and efficient review possible.  Rule 11-b out of New York is a sign the courts are listening, and things are changing. Privilege logs may become a little less painful after all.

[1] 22 NYCRR §202.70(g)