Privilege logs were never a fun part of business litigation. There are few tasks more tedious than logging individual pieces of correspondence by date, author, recipients, subject matter, reason withheld, etc. In the era of electronically stored information, the creation of a document-by-document privilege log has gone beyond mere tedium to become one of the more costly elements of an ESI burden that, by itself, may be dissuading businesses from pursuing commercial litigation at all. Something has to be done, say many, or else the burden of ESI discovery will foreclose litigation as an option for resolving modestly sized disputes. The authors of a recent law review article, building upon the work of The Sedona Conference, think they have a solution.
THE SCOPE OF THE PROBLEM
The digitization of communication has had a transformative effect upon the process of creating written business correspondence. Before e-mail, company executives dictated or handwrote letters, got a draft back from a secretary, edited it, got a new draft, edited it, and then put the document in final form, which was signed and then mailed, faxed, or sent by overnight courier. It would take a few days to get a response. The slow, multistep nature of business communication served to limit the frequency with which written correspondence was sent. More communication took place by telephone, and went undocumented. A dispute between two companies that was incubating for a year or two before flowering into a lawsuit might involve a few hundred discrete pieces of correspondence. The task of preparing the privilege log was a small part of the process of gathering relevant documents and preparing for production. A handful of attorney hours might be consumed.
Today, the business world revolves around various forms of electronic communication, e-mail, and texting being the most prominent. To say that e-mail has become ubiquitous does not quite do justice to the way in which it dominates the business day. As a result, most commercial disputes require the production of substantial ESI caches. The volume of electronic communication means that the average commercial case might involve many thousands or even millions of discrete ESI records. The privilege review, and the creation of a document-by-document privilege log, can consume weeks of attorney time. The log might contain thousands of entries. The log itself is often too vast to be printed on paper, and is presented to the adverse party in electronic format.
Obviously, anything that consumes weeks of attorney and paralegal time is, by definition, costly. In a litigation of any complexity, the privilege process might cost tens of thousands of dollars. The delivery of the privilege log, of course, is often just the beginning. If the adverse party disputes entries on the log, briefing and an in camera review may follow, costing still more. Though the digitization of business communication has been under way for over 25 years, jurisprudence in the area of e-discovery did not begin to develop until the late 1990s. See David Isom, "Electronic Discovery: New Power, New Risks," 16 Utah Bar Journal 8, 9, & 14 n.7 (2003) ("Until the late 1990s, electronic discovery issues in reported cases were scarce.").
To Continue Reading: Click Here
By: Peter Pizzi