Must Privilege Logs Separately Identify Each Part of an E-Mail “String”?

February 14, 2007

Courts traditionally have insisted that a privilege log separately identify and address each document and each attachment. As in so many other areas, the increasing use of e-mails has generated a debate about the required level of privilege log detail.

When confronted with the specific issue of whether a privilege log must separately list and deal with each portion of an e-mail string, sometimes courts answer in the affirmative. In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 672-73 (D. Kan. 2005). However, many recent cases note (without discussing) that privilege log entries refer to e-mail “strings” rather than separate e-mails. For instance, in Vaughan v. Celanese Americas Corp., Civ. No. 3:06CV104-W, 2006 U.S. Dist. LEXIS 89888, at *10-11 (W.D.N.C. Dec. 11, 2006), the court explicitly approved four privilege log entries that identified the withheld document as an “’email string.'”

In the abstract, it is easy to see why privilege logs should not lump an entire e-mail string together, but in the real world it is easy to see why courts permit it.