If a party wishes to assert authorizations to protect the documents of the production, it is often considered necessary to create some kind of authorization log. Of course, litigants may also decide to trust each other, retain only what is privileged without an authorization log, and avoid the burden of creating a journal. If you choose this route, we strongly recommend that you recall the agreement so that a change in legal counsel, circumstances or relationships does not result in subsequent disputes about the agreement reached. The reality is that litigation authorization logs are necessary if you want to protect communications from permissions. A botched or incomplete log can lead to costly and time-consuming litigation, or it can allow an adversary to see your client`s trust and litigation strategy, identify weaknesses, or stay ahead of your process plan. [4] Lake v. Charlotte Cty. Vol. von Cty. Commissioners, No. 2:20-CV-809-JLB-NPM, 2021 WL 2351178 (M.D. Fla. June 9, 2021) (allows two non-parties to serve a categorical register of privileges in relation to their responses to subpoenas).

Federal law generally requires a party to create an authorization log if it withholds relevant information from a discovery production on the basis of authorizations. Most civil cases – and to a large extent many criminal cases – generally follow the concept of disclosure codified in the Federal Rules of Civil Procedure (FRCP). FRPC 26(b)(1) establishes a very broad scope of investigation in federal civil proceedings as follows: In Rekor Systems, the court found that the plaintiff`s categorical protocol met the requirements of FRCP 26(b)(5) because it disclosed “the persons in the communications, the date range of the communication, the types of documents and the basis of the privilege.” [10] For example, one category reflected communication between the applicant and his lawyers about a particular real estate lease. Other categories revealed documents relating to the applicant`s sale of certain business units and the activities of its lawyers in connection with those transactions. In summary, the categorical record contained sufficient information to enable the defendants to assess the plaintiff`s claims of privilege. According to Upjohn, solicitor-client privilege with respect to internal communication within a company extends only to an employee who communicates with legal counsel on instructions from his or her superiors on matters within the scope of his or her duties for the purpose of legal advice. Communications where the lawyer is not a sender or recipient may also be preferred if they “directly or indirectly disclose the contents of a confidential solicitor-client communication.” When creating an authorization log, parties generally want to include any documents or classes of documents that are retained as privileged. One group of documents that is often overlooked is the communication between lawyer and client once litigation has begun. We recommend that you approach these documents by including a category in your Registry of Liens to make it clear that you are not establishing communication between the client and the lawyer regarding the dispute after the litigation has commenced on the basis of solicitor-client privilege and work product protection. Normally, the parties and the court will not insist on further information about these documents, but your explicit statement will help ensure that you have properly claimed privilege on these documents. Creating an authorization log can be time-consuming and time-consuming, but it can be an important tool to protect your customer`s trust and strategy in a case.

We hope this article has been helpful to you and encourage you to contact us if you have any other questions or issues that you think we should have addressed. Courts reviewing categorical protocols have also recently considered whether the FRCP 26(b)(1) proportionality standards apply to privilege protocols. Specifically, in U.S. Bank Nat`l Ass`n v. Triaxx Asset Mgmt. LLC, the Court held that “proportionality is an issue in the assessment of lien registers, as it is in other aspects of discovery.” [12] In adopting this view, the Court has generally stated that categorical protocols promote the objectives of proportionality by reducing the burden of establishing records of documents. In addition, the court expressly invoked proportionality to limit certain aspects of the defendant`s forest obligations, finding them to be “disproportionately onerous.” For example, the court would not order the defendant to note in its categorical minutes (as requested by the plaintiff) “the representation history of each law firm” given the complexity of this dispute. Justice Fuentes` decision highlights an unclear area of what should be included in a privilege protocol and the difficulty of obtaining a review of the documents of a protocol in camera. No matter which page you are on, focus on the document description.

When writing it, make sure it clearly states the basis for privilege. If you dispute this, make sure that the description is not sufficient and that you have already asked for a better one, or that you have legitimate evidence to suggest that the document is not justified in triggering the camera examination. Pure speculation is not enough. When creating descriptions, the party that does not retain records as privileged should try to provide a consistent explanation of what is excluded from detection because of privileges and why, without actually exposing the privileged information. It can be difficult to provide sufficient detail about the right to privilege to appease opposing counsel and ensure that the privilege is not disclosed.