When the Log Is Due

When the Log Is Due

Rule 26(b)(5)(A) tells a withholding party what to do: make the claim expressly, and describe the withheld material so that other parties can assess the claim without learning what is protected.¹ It does not say when. The rule's text sets no deadline, so the deadline comes from other sources: a court order, an agreement among the parties, and the expectation, enforced through waiver rulings, that the log accompany the response or follow it promptly. One court stated that expectation directly: a party asserting a protection must sufficiently assert its basis and “must also timely produce a privilege log.”²

Barb v. Brown's Buick, Inc. shows the expectation in practice. The court struck the defendant's boilerplate objections to a request for production, preserving only “any legitimate privilege objections for which a privilege log is submitted along with discovery responses.”³

The timing rule matters because the party resisting discovery carries the burden of showing that the protection applies; as with the attorney-client privilege, so with work product.⁴ The log is what lets the requester and the court see the claims and test them. With a log in the record, the dispute can be decided on what the log shows: one district court denied a motion to compel after holding that attorney-client privilege protected roughly 250 items summarized in the defendants' log.⁵

Measuring Lateness

A log is late when it arrives after the governing date without justification, and the decisions run along a gradient from days to months. At the long end, Magistrate Judge Rueter found a plaintiff's attorney-client privilege waived in all documents responsive to the defendant's request, because the plaintiff failed to produce a timely log as the court had ordered; the plaintiff delivered it nearly two months after the ordered date.⁶ At the short end, Judge Fox found a plaintiff's amended log in In re Total Containment, Inc. “sufficiently prompt as to avoid a waiver of all privilege,” relying on a decision in which a log arrived within four days of the original production and an amended log in under a month.⁷

The two outcomes track the harm a late log causes. Until the log arrives, the requester cannot assess any claim, and the first court's waiver reached every responsive document, not a sample. A log delivered within days, or an amended log within a month, leaves little of that harm.

Waiver is not automatic, because the justification for the delay matters. New York federal courts describe the consequence conditionally: failure to timely provide a log may operate as a waiver, and “the unjustified failure to list privileged documents on the required log of withheld documents in a timely and proper manner operates as a waiver of any applicable privilege.”⁸

Rhoads Industries v. Building Materials Corp. applied that qualifier to a party that offered excuses. Privileged documents Rhoads had produced were not listed on any log it served by June 30, 2008, and Rhoads did not log them until November 12, 2008. The court called the obligation to log “mandatory under the specific terms of Rule 26(b)(5),” and despite Rhoads's attempts to justify, explain, and minimize the failure, it held the delay “too long.”⁹

The party in Chevron v. Donziger offered no excuse for a late log because he never attempted a log. The court found no evidence, and not even a claim, that Donziger tried to prepare, much less serve, a log in the six months between service of the document requests and its ruling on October 18, 2018 that he had waived any applicable privilege.¹⁰ A party that cannot meet a date should ask for another before the date passes. When a fact pattern gives a log date and a later service date, work in three steps: identify the source of the date, measure the gap against it, and ask whether the party can justify the delay.

Electronic Data Protocols

Courts and parties adjust when, and in what sequence, a privilege log is served for large electronic productions, but the adjustments leave intact what the log must say. Counsel cannot log what no one has yet reviewed, and reviewing recovered or searched data takes time, so protocols start the clock at a later event and sometimes consolidate the logging.

In Koidl v. Schreiber, defense counsel had twenty days after delivery of the media containing extracted files and file fragments to deliver all nonprivileged documents and information, together with a log that identified each document withheld as privileged and described the nature of what was withheld without revealing privileged information, so the plaintiff could assess the claim.¹² In Rowe Entertainment, Inc. v. William Morris Agency, Inc., a defendant that chose to review its database before production did so at its own expense. It copied the hard drives and backup tapes the plaintiffs selected, deleted privileged or confidential and unresponsive material from the copies, and handed over each “redacted” drive or tape with a log identifying the removed documents.¹³ In Oddo v. Arcoaire Air Conditioning & Heating, the party claiming privilege over disclosed protected information had ten business days after receiving certification that the information had been sequestered, protected against further disclosure, and returned or destroyed to produce a log setting forth all the information Rule 26(b)(5)(A)(ii) requires.¹⁴ In Assaf v. OSF Healthcare System, the responding party had withheld one e-mail printout as privileged and asked to prepare a single log after its electronic search was complete. The plaintiff stated no opposition, so the court treated the dispute over the log as moot, and it added that a log must be properly prepared and served when discovery is supplemented with electronically stored information.¹⁵

These provisions move the starting point of the clock, as when it runs from delivery of the extracted media or from certification that protected information was sequestered. They also move the sequence of review and logging, as when a party reviews before production or serves one log after a completed search. None of them relaxes the content of the log: Koidl requires each document to be identified and its nature described, Oddo ties the log to what Rule 26(b)(5)(A)(ii) requires, and Rowe's log must identify the removed documents. The requester's need to assess grows with the volume of data, and a longer clock gives counsel time to review without licensing thinner entries. Each adjustment above rests on a written protocol, an agreed provision, or a request the other side did not oppose. None rests on a party's silent decision to log later.

Scale does not excuse a unilateral delay. In Rhoads, Mr. Gramaglia initially identified 210,635 unique e-mail messages as responsive to the defendants' requests¹⁶ and, to filter out privileged e-mails, searched the address line of every message for rhoadsinc together with gowa, ballard, or cpmi.¹⁷ The court nonetheless found Rhoads's delay in logging too long, as noted above.

Continuing Duty to Supplement

Rule 26(e)(1) requires a party that has responded to an interrogatory, request for production, or request for admission to supplement or correct its response.¹⁹ A log tells the requester what the response withheld, so a response that later withholds more needs a log that says so. Assaf states the working result for electronic data: a log must be properly prepared and served when discovery is supplemented with electronically stored information.²⁰ Electronic review begins with search terms and a first pass. In Rhoads, the first pass ran in January and February 2008 on search terms received from Rhoads's attorneys and “initially” identified the responsive messages;²¹ whatever counsel withholds from a later pass needs its own entry. The timing principles above govern supplemental and amended logs too, as the amended log served in under a month in In re Total Containment shows.²²

Each new act of withholding, not the calendar, triggers the update. A requester who receives a supplemental production and an unchanged log cannot learn that twelve responsive documents were held back, which recreates the silent withholding that the rule's express-claim requirement exists to prevent.