A multi-part series on the fundamentals eDiscovery practitioners need to know about the preparation and production of ESI
In “The Final Countdown,” we discussed the importance of production and the primary production formats. In “The Nitty-Gritty and Other Reduplications,” we discussed other important production format considerations. In “Who Gets to Decide,” we discussed what the FRCP have to say about who selects the production format. In “Production Format Disputes,” we discussed some example production dispute cases. In “Preparing the Production,” we discussed the actual preparation of the production. In this final Part, we review privilege logs, production logs, and key takeaways.
As you approach the end of your production efforts, there are two additional steps that should be taken prior to delivery of the prepared production set(s). First, if any materials have been withheld due to privilege or work product protection, those materials will need to be documented in a privilege log. Second, for your own records, you should prepare a production history log documenting your production(s).
As we’ve discussed, protecting privileged materials from inadvertent disclosure is of paramount importance during discovery, both because attorneys have an ethical duty to protect client confidentiality (see, e.g., ABA Model Rule of Professional Conduct 1.6) and because inadvertent disclosures can lead to privilege waiver if reasonable steps to prevent the disclosure weren’t taken (see Federal Rule of Evidence 502(b)). The final step in that privilege protection process is the preparation of a privilege log to accompany your production set delivery.
FRCP 26(b)(5) provides the basis for this requirement in federal courts:
(5) Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
The preparation of privilege logs can be a time consuming process, since each individual document withheld must be recorded, the claim for it articulated, and an adequate description written, and since, in larger cases, the total number of documents requiring logging can be quite high. As a result, it is common to begin planning and preparation for privilege log creation during the document review phase of an eDiscovery project.
It is common during document review to have reviewers designate not just general privileged status, but also to select the applicable legal basis from pre-written options so that those fields can be automatically populated during privilege log creation. To facilitate this, many document review platforms include features for privilege log creation, including the ability to automatically populate the log with key details about the documents your review has designated as responsive but privileged (e.g., date, file name, file type, claim basis, etc.).
In addition to creating the privilege log that you will provide with your production set delivery, it is also important to create and maintain a production history log for yourself. In this era of large ESI volumes, it is common to complete multiple productions on a rolling basis, providing responses to different requests or materials from different sources as work on them is completed. Additionally, matters with an open-ended period of relevance may require supplemental productions to be made as new responsive materials are generated.
A production history log documents all of the details you might need to know later (or be able to demonstrate to someone else later) about all of those productions. Key details to document include: what you produced, what formats you produced it in, when you produced it, how you delivered it, to whom who you delivered it, the requests to which it responded, and the Bates ranges it contained.
There are six key takeaways from our review of production fundamentals:
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