[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

There are varying schools of thought on how to enter an email string or thread in a privilege log. 

The “top email only” approach is less expensive, but may run afoul of the “trust, but verify” purpose of a log. It may obscure detail and hide non-privileged documents. 

However, the more expensive document-by-document log may expose protected information by disclosing what facts were communicated to counsel, and that information that is at the core of privilege. In short, while facts are not privileged, what the client communicated to counsel is privileged, absent some exception.

THE MAJORITY RULE

Wallace v. Rocking Horse Children’s Health Ctr., 2026 WL 1801024 (S.D. Oh. Jun. 23, 2026), adopted the majority rule. Plaintiff’s claim was for alleged wrongful termination.

[B]efore, during, and after Plaintiff’s termination––various communications and documents were produced between Rocking Horse and its counsel…. These included numerous email communications, Executive Committee Notes, Personnel Committee Notes, and a Draft Separation Agreement…. As identified in their privilege log, Defendant claims that all of these communications and documents are protected from discovery because of attorney-client privilege or work product doctrine.

Specifically, Rocking Horse asserted that 70 pages of email were protected as “direct communications with counsel that clearly fall within the scope of attorney-client privilege.” It asserted that other documents were work product.

Ms. Wallace disagreed and asserted that Rocking Horse’s privilege log was defective. In this federal question case, federal law governed privilege and work product. The court wrote that the general principle under Fed.R.Civ.P. 26(b)(5) is that a privilege log “must contain sufficient factual content to allow the court to reach the conclusion that each element of the privilege is fulfilled.”

The court ordered an updated privilege log, writing: “Defendant’s clustering of email strings logged under a singular claim of privilege makes it near impossible to decipher how and to what extent the asserted privileges apply.” It wrote:

Whether or not emails within a string are required to be logged separately is a developing issue in case law, with courts coming to different conclusions. Compare United States v. Davita, Inc., 301 F.R.D. 676, 685 (N.D. Georgia 2014) (requiring that “each withheld email within a string be logged in some fashion at least once.”) with Muro v. Target Corp., 250 F.R.D. 350, 363 (N.D. Ill. 2007) (declining to adopt the view that each email within a string be separately logged).

Wallace wrote that the Sixth Circuit had not decided the issue; however, “the majority view is that individual emails within a string should be separately logged in some fashion.” Id. at *4 (quotation and string citation omitted). Wallace then adopted that viewpoint, adding: “Logging the details of only the ultimate, top, email would not accurately state how many separate communications are included in the withheld document, and who received which of those communications. Such an approach may deprive Plaintiffs, and a reviewing Court, of the ability to assess the claim of privilege.” Id. (citation omitted).

The Wallace court explained:

In the present case, one of the first entries in Defendant’s privilege log––identified as Bates No. RH000255-74––illustrates the issue with logging a string of email communications under a singular claim of privilege…. As evidenced by the numbering system– –that is, 000255-74––this singular entry contains nearly twenty pages of email communications.… Moreover, it lists the document type as “Multiple email communications”; it lists five different dates spanning the course of fourteen days; and it lists seven different authors and seven different recipients, many of whom are non-attorneys…. Finally, it asserts the protection of attorney-client privilege and the work product doctrine with the following reason: “Counsel actively communicating with Rocking Horse Board Members and HR Director, rendering legal analysis and advice and answering questions to develop strategies related to Plaintiff’s pre-suit claims, possible early resolution as well as Plaintiff’s employment with Rocking Horse.”

Id. at *4.

The court found it “unclear that this reasoning applies to nearly twenty pages of email communications when there are multiple non-attorneys listed as authors and recipients, and the communications span a period of fourteen days.” Id. at *5.

The court ordered an updated privilege log, adding that “Defendant is not required to log an email multiple times if it appears more than once in an email string…. Rather, it is merely required that each withheld email within a string be logged in some fashion at least once.” Id. (cleaned up).

IS THE MAJORITY RULE CORRECT?

For a different resolution, see “Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But…. (Aug. 8, 2024). There, under the “part and parcel principle,” attachments to a privileged email may be withheld even if they are not privileged. In Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981), the Court wrote that “[a] fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his [or her] knowledge merely because he [or she] incorporated a statement of such fact into his [or her] communication to his [or her] attorney.” [citation omitted; emphasis added].

IS THERE A BETTER MOUSETRAP?

In light of that, there may be a better mousetrap. One option might be a certification log. Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”. A privilege log could identify only the top email if it were accompanied by a certification that every non-privileged attachment had been or would be separately produced. The certification could also state how many attachments were not being produced because they were independently privileged. The certification could state that counsel had reviewed the withheld attachments and there was a good faith basis for withholding them. Further, it could state that the withheld, but not logged, documents had been reviewed for waiver by disclosure and that the privilege was not waived. The certification might even be accompanied by a categorical log providing some additional details about the withheld attachments. Categorical Privilege Logs Are Not Disfavored (Apr. 10, 2026). Fed.R.Civ.P. 29 permits stipulations as to discovery procedures. Fed.R.Civ.P. 26(f) requires development of a discovery plan.

The Sedona Conference suggests cooperation to prevent an issue from arising. Commentary-on-Privilege-Logs-May-2024.pdf (thesedonaconference.org), 25 Sedona Conf. J. 221, 266, passim (May 2024 version):

For more on “what is a document” in the digital age, please visit What is a Document? For more on privilege logs, see Search Results for “”privilege log”” – E-Discovery LLC.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.