Discovery can be a contentious phase of the litigation process. Opposing parties often dispute the scope of information that must be provided to opposing counsel during the discovery process. While in general, there is broad latitude given to document production during discovery, there are categories of information that are carved out for special protection based on the nature of the relationships between the parties. The premise in adopting these exceptions is that the law should not restrain the open, honest and candid nature of the discourse and flow of information that exists in these relationships. These include communications between a husband and wife, doctor and patient, attorney and client, and religious clergy and advisee.

During discovery, parties may respond to requests for documentation in three ways: (i) produce the information, (ii) state that the information is not available after a thorough investigation, or (iii) object to the request based on specific grounds. If the third alternative is asserted, the documents or information cannot be unilaterally withheld without sufficient justification. Rather, the party making the claim must explicitly inform the opposing party that it is not producing certain information on account of the privilege and describe the nature of the material without revealing the confidential information that is protected. A summary of the privileged information should provide enough detail for opposing counsel to determine whether a challenge is warranted. This requirement is set forth in the federal rules governing discovery, as well as in many state laws that have adopted similar rules.

The standard practice for tracking privileged information and complying with these requirements is submitting a privilege log. A privilege log typically includes the date of the document, its author and recipients, a summary of the document type, the contents of the document, and a description of the privilege that applies. Because discovery now involves the production of large volumes of electronic documentation, most parties and many courts accept a log that is organized by category rather than individual documents. The rule notes that where large quantities of documents are set aside as privileged, it may be “unduly burdensome” to create a traditional privilege log.

Contact Shane Coons at 949-333-0900 or visit his website at www.ShaneCoonsLaw.com to find out more about his practice.