Privilege Log FRCP Amendments Set to Advance in Mid-September

Proposed amendments to Federal Rules of Civil Procedure (FRCP) to addresses the unnecessary expense, burdens, and harmful gamesmanship caused by a default to document-by-document privilege logging, will be on the agenda for the mid-September meeting of the Judicial Conference of the United States. If approved, the proposal will then go the U.S. Supreme Court for consideration.

The proposed amendments to Rules 26(f) and 16(b) would require parties to discuss, and prompt judges to order, the most appropriate means for compliance with Rule 26(b)(5)(A)—including alternatives to document-by-document logging.

Since proposing FRCP amendments in 2020, LCJ has been leading the corporate and defense bars’ advocacy for rule changes to curtail the indiscriminate default to document-by-document privilege logs, which are one of the most labor-intensive, burdensome, costly, and wasteful parts of pretrial discovery in civil litigation. As the Sedona Conference explained in its Commentary on Protection of Privileged ESI (2016), “[i]n complex litigation, preparation of [privilege] logs can consume hundreds of thousands of dollars or more.”

As the volume of material potentially subject to discovery has escalated, so has the number of documents withheld for privilege and the burden on producing parties. Because document-by-document logs treat each item as if it had equal importance, such logs force parties and courts to focus often misplaced attention on items that may have no material relationship with the claims and defenses. The new FRCP amendments will make it easier for parties to employ more efficient means of meeting their logging responsibilities tailored to the needs of individual cases.

The U.S. Judicial Conference is expected to approve the amendments at its September meeting, forwarding them to the Supreme Court, which is expected to send the amendments to Congress in April 2025. If Congress takes no action on the amendments (and none is expected), they will take effect on December 1, 2025.

LCJ materials related to the privilege log amendments are available in LCJ’s document directory.