Rule 6-3 Privilege or Protected Information

(a) Meet and Confer. As part of the Case Management Meeting, the parties shall confer regarding: the scope of any privilege review, the amount of information to be set out in a privilege log, the use of categories to reduce document-by-document logging, whether any categories of information may be excluded from the logging requirement, a deadline for exchanging privilege logs, and any other issues pertinent to privilege review.

(b) Information Withheld. If a party withholds information otherwise discoverable by claiming the information is privileged or subject to protection as attorney work-product, the party shall: (1) expressly make the claim; and (2) prepare a privilege log that describes the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that will enable other parties to assess such claim without revealing information that is itself privileged or protected.

(c) Privilege Log – Form.

(1) The parties should use categorical designations, if appropriate, to reduce the time and costs associated with preparing privilege logs and to utilize any reasoned method of organizing the documents that will facilitate an orderly assessment as to the appropriateness of withholding documents in the specified category. For each category of documents that is established, the producing party shall provide a certification setting forth with specificity those facts supporting the privileged or protected status of the information included within the category. The certification shall also describe the steps taken to identify the documents so categorized, including, but not limited to, whether each document was reviewed or some form of sampling was employed, and if sampling was employed, how the sampling was conducted. As a default matter, document-by-document privilege reviews shall be preferred. Any potential need for sampling, and the potential method for sampling, shall be discussed by the parties before any such sampling is undertaken so that the requesting party has the opportunity to object to the sampling proposal before the review is underway. The certification shall be signed by the Responsible Attorney, as defined in section (f) of this rule, or by the party, through an authorized and knowledgeable representative.

(2) If the requesting party objects to a categorical approach and insists on a document-by-document listing on the privilege log, absent an order of the Court to the contrary, the producing party shall proceed with preparing a document-by-document privilege log. After a showing of good cause, the producing party may apply to the Court for an allocation of costs (including attorney's fees) incurred in the preparation of the document-by-document log.

(3) To the extent that a party insists upon a document-by-document log, and absent an order to the contrary, each uninterrupted e-mail chain shall constitute a single entry, and the description accompanying the entry shall include all of the following:

(A) An indication that the e-mails represent an uninterrupted dialogue.

(B) The beginning and ending dates and times (as noted on the e-mails) of the dialogue.

(C) The number of e-mails within the dialogue.

(D) The names of all authors and recipients, together with sufficient identifying information about each person (e.g., name of employer, job title, and role in the case) to allow for a considered assessment of privilege issues.

(d) Information Produced. If information produced in discovery is subject to a claim of privilege or otherwise protected from disclosure, the party making the claim may notify any party that received the information of the claim and the basis for it. The producing party shall preserve the information until the claim is resolved. After being notified, a party —

(1) shall promptly return or destroy the specified information and any copies thereof;

(2) shall take reasonable steps to retrieve the information if the party disclosed it before being notified; and

(3) may promptly present the dispute to the Court for determination of the claim.

(e) Agreements to Prevent Privilege and Work-Product Waiver. Parties should agree to an order that provides for the non-waiver of the attorney-client privilege or work-product protection if privileged or work-product material is inadvertently produced.

(f) Responsible Attorney. As used in this rule, the term "Responsible Attorney" means an attorney having supervisory responsibility over the privilege review. A Responsible Attorney shall be actively involved in establishing and monitoring the procedures used to collect and review documents to determine that a reasonable and good faith effort is made to ensure that responsive, non-privileged documents are timely produced.