Privilege Log Deemed Partially Inadequate

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

In Gilbane Bldg. Co. v. School Bd. of Broward County, 2025 WL 1615553 (S.D. Fl. Jun 6, 2025), plaintiff moved to compel a “compliant” privilege log.  The court decided six issues.

The court wrote: “I agree that Defendant must serve an amended privilege log with additional information (as described below), though not everything that Plaintiff is requesting.”

SIX PRIVILEGE LOG HOLDINGS OF GILBANE BLDG.

First, Plaintiff demanded that defendant’s privilege log provide email addresses for senders and recipients listed on the log.  The request was denied, with the court writing that: “The rules do not require such information, and Plaintiff points to no law to support its request to compel Defendant to provide email addresses in Defendant’s privilege log. Nor do I see why email addresses are necessary for Plaintiff to be able to evaluate Defendant’s assertion of privilege (particularly given the other information Defendant will need to provide).” 

There may be unique instances where, for example, an email address would support a waiver argument, such as JoeandMary@domain.com.  No such showing was made in Gilbane Bldg.

Second, Plaintiff demanded that defendant’s privilege log identify the relationship between senders/recipients and the parties.  The request was granted in part, with the court writing that:

[I]t is appropriate for Defendant to provide information regarding the senders and recipients where Plaintiff does not know or cannot easily ascertain the role of an individual. But I will not require Defendant to provide such information for every single individual. After all, Plaintiff’s requests for production show that Plaintiff clearly knows who several individuals are…. Therefore, Plaintiff may provide Defendant with a list of senders and recipients whose role Plaintiff is unaware of and cannot easily ascertain. Upon receiving any such list, Defendant shall briefly identify who each individual is within 7 days. [emphasis added].

Gilbane Bldg. Co. v. School Bd. of Broward County, 2025 WL 1615553 (S.D. Fl. Jun 6, 2025).

Third, Plaintiff demanded that defendant “log emails and attachments separately (rather than, in at least certain instances, logging email strings spanning weeks in a single entry)….”  Again, the request was granted in part, with the court writing:

[R]egarding the logging of emails and attachments separately, it may be appropriate in certain circumstances to log a string of emails in one entry, and it may be inappropriate in other circumstances. However, I cannot presently evaluate whether it is appropriate here in some or all places Defendant has done so. That is largely because, as discussed below, Defendant must provide better subject-matter descriptions first (including for attachments to emails). After doing so, if the subject matter is exactly the same for every email in an email string, logging the string as one entry may be appropriate. But first, Defendant needs to provide better descriptions. And second, before running back to the Court (if any disputes remain), the parties will need to do a better job exploring and talking through the issues for each individual privilege log entry in dispute. [emphasis added].

Id.

Some courts have held, and commentators have written, that requiring a party to identify attachments that it sent to its attorney violates privilege.  “Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But…. (Aug. 8, 2024). In Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme 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.”  [emphasis added].

The Sedona Conference has written that “there is a lack of consensus among courts that have addressed in the context of email chains (i.e., one document that contains multiple emails) whether it is sufficient to log the top level email or whether each component email in the chain must be individually logged.” Commentary-on-Privilege-Logs-May-2024.pdf (thesedonaconference.org), 25 Sedona Conf. J. 221, 266, passim (May 2024 version)(emphasis added).

Fourth, Plaintiff demanded that defendant provide the date when defendant anticipated “imminent” litigation, the exemption standard under a Florida public records statute. The court held that defendant had done so and the request was moot.

Fifth, the last issue was, in the court’s words, “the largest dispute.”  Plaintiff demanded that defendant provide additional information about the subject of each email.  Defendant responded that it had provided the verbatim subject line of each privileged email.  Defendant wrote that it “struggles to see how including the exact ‘RE’ line is not sufficient to describe the subject matter of the emails,” and asserted that providing additional information would divulge privileged material.”  The court agreed with plaintiff:

Most (if not all) entries fail to contain a description that allows for an adequate assessment of the privilege claimed. For instance, the description for the first entry on the privilege log merely states “RE: Stranahan High School – Division 15 Balance.” … That description falls woefully short of establishing the confidential nature of the email. The email may very well be privileged. After all, one of the recipients is Defendant’s litigation counsel in this case. But the description in the privilege log is plainly inadequate.

Id.

After giving another example, the Gilbane Bldg. court wrote: “Defendant can surely provide additional information regarding the nature of the emails and attachments on the privilege log.”  It was ordered to do so and the parties were directed to meet and confer about any additional disputes.

Sixth, as to a request for in camera review, the Gilbane Bldg. court added:

I note that Defendant said it would gladly submit the items on the privilege log for an in camera review, but the Court declines any invitation… to conduct an in camera review until the threshold requirement of preparing a[n] [adequate] privilege log is met…. The parties need to do their part first, with Defendant doing enough to attempt to establish the claimed privileges and Plaintiff then circling back with Defendant to adequately explore and discuss any remaining issues on an entry-by-entry basis…. It is wise for the Court to not consider an in camera review until the party asserting privilege has done all that it reasonably could to establish privilege. [cleaned up; citations and quotations omitted].

Id.

Many other authorities are in accord.  See generally, The Standard for In Camera Review of Assertedly Privileged Documents (Jul. 9, 2024)(“A Court should only conduct an in camera review after the movant provides a sufficient factual basis to support a good faith belief that in camera review will reveal improperly withheld material.” [citation omitted]); Order Granting In Camera Review of Work Product Claim (Apr. 14, 2025)(“the court should never be required to undertake in camera review unless the parties have first properly asserted privilege/protection, then provided sufficient factual information to justify the privilege/protection claimed for each document, and, finally, met and conferred in a good faith effort to resolve any disputes without court intervention.” Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 266 (D. Md. 2008).).

SOME PRINCIPLES GOVERNING PRIVILEGE LOGGING

There is a vast body of law governing privilege logging, and sometimes it is difficult to apply.  The Sedona Conference wrote that: “Privilege logging is arguably the most burdensome and time consuming task a litigant faces during the document production process.”  “Commentary on Protection of Privileged ESI,” 17 Sed. Conf. J. 97 (2016). 

One court recently wrote that a privilege log “should be robust,” however, logging should not be an “overwhelming burden.”  Privilege Logs, Null Sets, Search Strings, and Number of Custodians in One Decision (Jan. 27, 2025), quoting Cook v. Meta Platforms, Inc., 2024 WL 251942 (N.D. Cal. Jan. 21, 2025).

The purpose of a privilege log is to permit the discovering party to “trust, but verify” or “cut the deck.”  See When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024); Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024)(Former President Reagan said that negotiations are a process of “trust but verify. It’s still play, but cut the cards. It’s still watch closely. And don’t be afraid to see what you see.”).

Cooperation, proportionality, and transparency are always paramount in electronic discovery, including privilege logging.  Negotiation of a discovery plan or ESI Protocol¹ addressing privilege logging is the best approach.  There are New Techniques to Achieve Proportionality (discussing various types of logs).  Parties have used document-by-document logs, metadata logs, metadata “plus” logs, categorical logs, “certification logs,” and a combination of different types of logs.  Id.  There can be different types of logs for different types of ESI.  As to attachments to privileged emails and email chains, parties have negotiated “top only” logs with a requirement to produce non-privileged, responsive attachments separately.

Fed.R.Civ.P. 29 states: “Unless the court orders otherwise, the parties may stipulate that…  procedures governing or limiting discovery be modified….”  For example, where parties agree to a metadata privilege log, courts have enforced the agreement. See Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024).  It is relatively easy to create a metadata or metadata plus privilege log in a litigation review platform.  See How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024).

The Federal Rules of Civil Procedure generally require privilege logs. See Do You Have to Ask an Opponent for a Privilege Log? (Jun. 25, 2024).  However, there may be limited exceptions. See No Privilege Log is Necessary in Limited Circumstances When Discovery Requests Are Overbroad (Apr. 5, 2025); Where Requests for Discovery were Overly Broad, No Privilege Log was Required (Oct. 12, 2024); No Privilege Log Is Needed While Scope of Discovery Objections Are Pending (Aug. 3, 2024); When is Failure to Provide a Timely Privilege Log Excusable? (Jun. 24, 2024). 

Logs should assert privilege with specificity. See Privilege Log Entry That Document is “A-C Privileged and/or Work Product” Held Insufficient (Aug. 28, 2024); Privilege Objections Denied Without Prejudice (Nov. 11, 2024)(“One core principle set out in Singelton is that a party cannot shift to the Court the work of determining what is or is not privileged.  Specific objections are required.”).  For example: “[T]he proponents of the privilege must produce a privilege log that specifically identifies each document or communication and the type of privilege being asserted. See Fed. R. Civ. P. 26(b)(5)….”  Discovery Rulings in Abrego-Garcia v. Noem Deportation Case (Apr. 23, 2025)(citation omitted).  Non-parties’ may have additional obligations.  See Non-Party Law Firm Ordered to Provide Defaulting Client’s Affidavit to Support Claim of Client’s Privilege (Jun. 6, 2025).

“The standard for determining the adequacy of a privilege log is whether, as to each document, it sets forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.”  Southern Pine Credit Un. v. Southwest Marine & Gen’l. Ins. Co., et al., 2024 WL 1361891 (M.D. Ga. Mar. 29, 2024); see How Much Detail is Enough in a Privilege Log? (Apr. 9, 2024).  While the principle is clear, its application often is not:

There is plenty of room for debate.  In Hon. John M. Facciola & Jonathan M. Redgrave, “Asserting and Challenging Privilege Claims in Modern Litigation:  The Facciola-Redgrave Framework,” 4 Fed. Cts. L. Rev. 20, 32 n. 55 (2009), the authors reported on a non-scientific experiment with Judges and attorneys.

The participants were asked to determine whether three typical entries in a privilege log met the requirements of Fed.R.Civ.P. 26(b)(5).  The entries were: (1) “Attorney-client privilege”; (2) “Letter providing legal advice”; and, (3) “Letter providing legal advice as to tax consequences of the proposed Smith deal.”

Everyone agreed that the first description was insufficient; however, consensus stopped there.  The authors wrote:

There also should be no surprise that the lawyers thought the second was the most that they would ever put in a privilege log while all of the judges found that the second was insufficient on its face and only the last one was adequate.  The consternation arises from the third, which many lawyer-participants felt provided too much information such that there was real risk of privilege waiver; however, the judges were happier with the substantially improved prospects of understanding and ruling upon the privilege claim.

Hon. John M. Facciola & Jonathan M. Redgrave, “Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework,” 4 Fed. Cts. L. Rev. 20, 32 n. 55 (2009).

One risk of failing to comply with the requirement of a timely and sufficient log is waiver of the privilege. Cf. Court Holds Privilege Was Waived by Failure to Timely Provide a Privilege Log (May 30, 2024).  One court wrote that: “In fact, the privilege log is so clearly insufficient that the Court would have been within its discretion to find that the City had waived the privilege and require all of the documents to be produced.”  Obstructionist Discovery is Called Out by Court (May 31, 2025)(citation omitted).  For example, “and/or” privilege logs have been rejected.  Privilege Log Entry That Document is “A-C Privileged and/or Work Product” Held Insufficient (Aug. 28, 2024).

However, vague challenges to a privilege log have been rejected.  Fiskars II:  Vague Challenge to Privilege Log Entries Deemed Defective (Aug. 25, 2024).

This link provides an Example of a Categorical Privilege Log (Sep. 23, 2024); Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021); but cf. When is a Categorical Privilege Log Insufficient? (Jun. 20, 2024); Categorical Privilege Log Presented Interpretive Issues (Nov. 17, 2021).

One recent decision applied “rough justice” when it looked at the demanding party’s privilege log and wrote: “If the plaintiff really wants a privilege log from the defendant for all communications after the plaintiff’s attorney contacted defendant’s counsel, plaintiff has a lot more work to do on his own privilege log.”  The court then gave the parties some advice. It wrote that it might “behoove” them to resolve their disputes: “In short, it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.”  What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024), quoting Kyle Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. 2024).

Notes

1. For the differences between an “ESI Protocol” and a “Discovery Plan,” please see “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024). ↩︎

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