The Privilege Log Offensive
By David Ben-Meir (March 11, 2025)
As litigation attorneys well know, privilege logs are a record that each party in a court dispute creates and produces to the other side during the dispute’s discovery phase describing the nature of each document or other information that the party is withholding based on a privilege, like attorney-client privilege, or immunity. The privilege log is supposed to describe each document in a manner such that the other side can appreciate the legitimacy of the claim that the document is appropriately withheld, but without disclosing the privileged information itself.
Even as software for enhancing efficiency in document discovery continues to evolve and improve, privilege log preparation remains burdensome and costly. Analyzing each potentially privileged document frequently is a fraught one, involving a hierarchy of decisions that a litigation attorney must make based on the applicable jurisdiction’s law of attorney-client privilege, in order to appropriately characterize the document. The sense that privilege calls often carry significant ramifications leads litigation counsel to not take privilege log preparation lightly — and at least as of now — to generally be uncomfortable relying on AI tools to make decisions about privilege without an attorney’s eyes on every potentially privileged document.
It is not surprising, therefore, that privilege log preparation is often relegated without much strategic consideration to the tail end of the fact discovery phase. If one side is not aggressively demanding privilege logs, it is all too easy for the other side let the matter slide, whether because of the cost of preparing the logs or the potential for discovery disputes that producing the logs will invite.
In a protracted dispute, it easy to miss the opportunities that could materialize for settlement leverage or to strengthen a case by taking the initiative on privilege logs. What’s apparent to counsel on one side of a dispute are the often myriad of issues surrounding producing its side’s privilege log. What is almost never clear to that side are the other side’s privilege-related challenges, and the pressure points that a party may gain by both demanding an early production of logs and disputing the suspect entries on the opposition’s log once it is produced. With opponents seemingly withholding documents on increasingly strained bases of privilege and daring counsel to bring motions to compel production or hoping to run out the discovery clock, it is more important than ever for litigation counsel to bring privilege issues to a head early in discovery.
Unless your side is in a truly precarious state with respect to its documents and the privilege calls relating to them, the best course to gaining meaningful leverage over an opponent in the context of privilege is to persuade the client to face the cost of an early privilege review and go on the privilege log offensive.
