Trial Magazine

One of the most rewarding—and effective—litigation tactics I have used during my career is challenging defendants’ privilege logs. Time and time again, corporations abuse the attorney-client privilege and the work product doctrine. They define the privilege too broadly. They put too little information in the log to allow you to properly evaluate whether the privilege applies. They hope you won’t bother to press the issue because if you don’t, they get to hide damaging documents from you, the judge, and the jury. Fighting privilege logs is the number one way to obtain documents critical to proving your client’s case. Here’s how to do it.

Ask for a privilege log at the outset. Federal Rule of Civil Procedure 26(b)(5) is the starting point in federal court, and every state has a rule or a statute that governs the scope of privileges and the process for their proper application. Defendants should voluntarily produce a log whenever they are withholding documents on a privilege objection, but often, they don’t bother. So, ask for a log and follow up until you get one or get the defendant on record that it is not withholding any documents on privilege grounds.

Meet and confer on the format of the privilege log. Insist that you get it in native format—like Excel—and not as a PDF. As you review the log, be sure you can search it, sort it, and add columns to mark the entries you will challenge. You also must negotiate what specific information you will be getting in the log. Defendants will want a bare-bones log with only the document’s date, the author, the subject, and a cursory reason for the privilege. But here’s what you are entitled to and should demand:

• Who wrote the document? Who sent it, and to whom? Who was cc’d or bcc’d? Don’t let the defendant lump together cc’s and bcc’s.
• Who was the document’s custodian/whose file was it in? What is that employee’s job title?
• The document type should be identified in the log. Was it an attachment to an email or a freestanding document? Make sure attachments are logged separately from their “parent” documents.
• Ask for a detailed subject matter description and insist on a separate column that includes a detailed explanation of the privilege.
• Get defendants to put an asterisk next to the name of every attorney on the log so that you can easily identify whether an attorney sent or received the information. Ask for another symbol to identify third parties, since delivery outside of an organization can void the privilege.

Once you have the log, review each entry carefully and make challenges right away. Don’t lose the ability to challenge logs due to the passage of time. If there are disputes about the format or content of the logs, address this early. Document all correspondence. Insist on meet-and-confer calls to review representative entries. Often, defendants won’t go before the judge to defend sloppily prepared logs. At a minimum, challenging defendants will result in them giving you documents they were previously withholding and will narrow the dispute you have to bring to the judge.

I’ve been honored to work with AAJ to ensure that the federal rules on privilege remain strong. Over the last few years, the Advisory Committee on Civil Rules, at the request of the defense bar, reviewed the rules on privilege logs. AAJ and our members successfully pushed back, submitted comments, and provided testimony. Now, the privilege log amendments (effective Dec. 1, 2025) call for early attention to privilege issues, requiring parties to discuss and have a plan for addressing privilege at the outset of discovery. This strengthens our ability to reveal hot documents when defendant companies try to hide behind overbroad privilege logs.

Don’t let defendants hide documents that your client is entitled to. It could make all the difference as you strive to hold wrongdoers accountable.

Lori E. Andrus is a partner at Andrus Anderson in San Francisco and can be reached at lori.andrus@justice.org.