Privilege Log

What It Is

When a party withholds otherwise discoverable material by claiming a privilege or the work-product protection, Rule 26(b)(5)(A) requires the party to expressly make the claim and to describe the nature of the withheld documents “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” The privilege log is how that is done.

A response that says “objection, privileged” and produces nothing is not a valid withholding. Under Rule 34(b)(2)(C), an objection must state whether any responsive materials are being withheld on the basis of the objection. Under Rule 26(b)(5), the withheld materials must then be logged.

What a Log Must Contain

The exact requirements come from Rule 26(b)(5), your district’s local rules, the scheduling order, and any agreement between the parties. The usual fields are:

1. a unique identifier for the entry
2. the date of the document
3. the author
4. every recipient, including anyone copied
5. the document type (email, memo, report, recording)
6. a description of the subject matter that does not reveal the privileged content
7. the privilege or protection asserted
8. the factual basis for the claim
9. the custodian
10. whether it is part of a family (attachment, thread) and the relationship
11. when the log was served
12. which request it responds to

Some courts permit categorical logs for large volumes of similar documents, but only by agreement or order.

Common Privilege Claims in Section 1983 Cases

• Attorney-client privilege for communications between the city attorney and officers or officials. Legitimate when it is legal advice. Not legitimate for factual reports that existed anyway or for communications with no lawyer involved.
• Work product for material prepared in anticipation of litigation. An incident report prepared in the ordinary course is not work product because a lawsuit later followed.
• Law enforcement or “official information” privilege for internal affairs files, personnel records, and investigative material. This is a qualified privilege that courts balance against your need. Expect to brief it.
• Deliberative process for internal policy discussions. Rarely covers the facts you actually need.

What You Can and Cannot Do With a Log

You can audit each entry for missing fields and demand a compliant log. You can challenge entries whose descriptions do not support the claimed privilege. You can move to compel production or an in-camera review, in which the judge reads the documents privately to decide.

You cannot decide the privilege question yourself, and you should not assume that an incomplete log waives the privilege. Courts sometimes find waiver for a grossly deficient or untimely log, but more often they order a better log. Ask for the compliant log first, then the documents.

See Privilege Logs in a Section 1983 Case.

Key Authority

• Fed. R. Civ. P. 26(b)(5)(A) — claiming privilege and describing withheld material
• Fed. R. Civ. P. 34(b)(2)(C) — objections must state whether material is withheld
• Your district’s local rules and scheduling order on privilege-log format