Welcome To Our Rockin’ Priv Party On Categorical Privilege Logs

Guest Blog by Shannon Capone Kirk, E-Discovery Counsel at Ropes & Gray and Adjunct Professor of E-Discovery Law at Suffolk Law School; Emily Cobb, Discovery Attorney at Ropes & Gray; and Matthew Gens, Associate at Ropes & Gray. See columnists’ disclaimer at end.

It’s a bottomless well
It’s a little overkill
It’s the end of a dragon’s tail
That’s whipping around our heels

But we don’t bow
We make no deals
If we go down, we go
Down on our own shield

-Jakob Dylan, Down On Our Own Shield, on Women & Country (Sony 2010).

Come on in – Welcome to our Rockin’ Priv Party

The last time I wrote an article for Ralph, I mercilessly used Bob Dylan’s Brownsville Girl as a call to arms for more art in discovery, more finesse, and a move away from boilerplate document requests. Now, I reference his son, Jakob Dylan. It’s strange how the master’s son, a master in his own right, has also written a lovely song about discovery. Ok, perhaps the song is really about lost love or something more existential than civil litigation, but still, when I hear the verses above I also hear the angst of lawyers everywhere toiling over unending, document-by-document privilege logs, those bottomless wells, that unnecessary overkill, a dragon’s tail whipping around our heels and tired heads. Oh, the mindless dredge. And do we bow or make deals to limit our suffering? No, we do not bow nor make any deals. We go down, we go down on our own shields, our mouths full of stale coffee, our eyes red from electronic review, our keyboards full of crumbs. We need to control that dragon’s whipping tail.

Some of us do try. I’ll introduce my colleague and co-author, Emily Cobb, Discovery Attorney, who tries almost everyday to tame a dragon—those scaly, angry, hot-breathed, fire-breathing, never-ending privilege logs. Across a variety of cases, the arguments used to calm this beast have been the same, the volume of ESI is too great, the burden to log individual documents too large, there are better ways, technological advances even, that allow us to short-circuit the drudgery of a 30,000 plus line excel spreadsheet. Most of us who try these arguments, however, usually fall upon these usual and predictable refrains from our adversaries:

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Source: e-discoveryteam.com
By: Shannon Capone Kirk