Comments invited on issues with federal privilege log practice

The U.S. Judicial Conference Advisory Committee on Civil Rules is seeking comment to determine the difficulties attorneys encounter in complying with Civil Rule 26(b)(5)(A) and whether rule amendments could solve them.

Questions were raised by the committee after receiving a suggestion that rule changes be adopted to address difficulties in complying with Rule 26(b)(5)(A) in some cases. The rule, enacted in 1993, provides that, “When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.”

“According to submissions received by the Advisory Committee, many courts have insisted on a document-by-document privilege log to satisfy Rule 26(b)(5)(A),” the committee said in announcing the request for comments. “With the centrality of digital material in discovery, the burdens of preparing such a log reportedly have increased. Furthermore, some say that the resulting logs (perhaps partly prepared by software) are often too ‘generic,’ or rely on ‘boilerplate’ explanations that do not serve the goals of the rule or enable the parties or court to assess the claim of protection.”

The Civil Rules Committee noted that problems under the current rule might occur principally in “large document” cases, and not in most civil litigation in federal court. The Discovery Subcommittee, now in the early stages of considering possible changes to the rules responsive to such concerns, is inviting comments from the bench and bar on the issue.

Specifically, the subcommittee is seeking input that will assist it in determining whether there are significant issues impacting the goals of just, speedy and inexpensive resolution of litigation with current practice under Rule 26(b)(5)(A).

“The subcommittee is therefore interested in whether those who comment have experienced problems in complying with the rule. If so, are those problems arising in all cases or only in some cases? Have similar difficulties occurred in state-court litigation, and do those state courts have rules similar to Rule 26(b)(5)(A)?”

The subcommittee is asking if the parties have been able to work out methods of satisfying the rule that are not unduly burdensome; if judicial involvement in developing those methods been useful; and whether solutions of the sort parties and courts have devised in individual cases could be usefully required for all cases by a rule revision? Members of the bar who comment on that particular aspect are asked to describe the general nature of their practice experience.

Additionally, the committee invites comment on whether those who have encountered problems under the current rule would regard possible rule amendments as potential solutions to the problems or present new issues.

Possibilities that could be considered include:

  • A revision to Rule 26(b)(5)(A) indicating that a document-by-document listing is not routinely required, perhaps referring in the rule to the possibility of describing categories of documents.
  • A revision to Rule 26(f)(3)(D) directing the parties to discuss the method for complying with Rule 26(b)(5)(A) when preparing their discovery plan, and a revision to Rule 16 inviting the court to include provisions about that method in its scheduling order.
  • A revision to Rule 26(b)(5)(A) to specify that it only requires parties to identify “categories” of documents. Alternatively or additionally, a revision to the rule might enumerate “categories” of documents that need not be identified.

Currently, no decision has been made as to whether any rule change should be formally considered, and the eventual conclusion may be that no rule change is needed, the committee said.

Comments should be submitted electronically by Aug. 1 to [email protected].

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