Local Rule Local Civil Rule 26.2: Assertion of Claim of Privilege

Local Civil Rule 26.2. Assertion of Claim of Privilege

(a) Unless otherwise agreed to by the parties or directed by the court, where a claim of privilege is asserted in objecting to any means of discovery or disclosure, including but not limited to a deposition, and an answer is not provided on the basis of the assertion,

(1) The person asserting the privilege must identify the nature of the privilege (including work product) which is being claimed and, if the privilege is governed by state law, indicate the state's privilege rule being invoked; and

(2) The following information must be provided in the objection, or (in the case of a deposition) in response to questions by the questioner, unless divulgence of the information would cause disclosure of the allegedly privileged information:

(A) For documents (including electronically stored information): (i) the type of document, e.g., letter, email, or memorandum; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) the author of the document, the addressees of the document, and any other recipients, and, where not apparent, the relationship of the author, addressees, and recipients to each other;

(B) For oral communications: (i) the name of the person making the communication and the names of persons present while the communication was made and, where not apparent, the relationship of the persons present to the person making the communication; (ii) the date and place of communication; and (iii) the general subject matter of the communication.

(b) Where a claim of privilege is asserted in response to discovery or disclosure other than a deposition, and information is not provided on the basis of the assertion, the information set forth in paragraph (a) above must be furnished in writing at the time of the response to the discovery or disclosure, unless otherwise agreed to in writing by the parties or ordered by the court.

(c) Efficient means of providing information regarding claims of privilege are encouraged. Parties are encouraged to discuss measures that further this end, including which information fields will be provided in the privilege log. When appropriate, parties should consider and discuss the use of a categorical log or a metadata log, instead of a document-by-document log. Unless otherwise agreed to by the parties or provided by a judge's individual practices or by court order,

(1) when a party is asserting privilege on the same basis with respect to multiple documents, it is presumptively proper to provide the information required by this rule by group or category;

(2) where numerous documents are withheld and the party is using review software, preparation of a metadata log may suffice to provide the information required to support the claim of privilege;

(3) where either a categorical log or a metadata log is used, the parties are encouraged to discuss whether to allow the requesting party to request a document-by-document log for a limited number or percentage of the logged documents; and

(4) a party cannot object to a privilege log solely on the basis that it is a categorical log or a metadata log but may object if the substantive information required by this rule has not been provided in a comprehensible form.

For relevant historical context for this local rule, consult the Appendix of Committee Notes.