Must Litigants Log Protected Documents Created After the Litigation Begins?

November 12, 2008

The Federal Rules require litigants to identify and describe responsive documents they withhold, and most courts demand that the litigants prepare a privilege log. Does this requirement continue after the litigation begins — thus requiring litigants to continually log the many documents they generate (draft pleadings, internal law firm or law department memos, phone slips memorializing communications with the client, etc.)?

The Federal Rules do not contain any exemption from such a post-filing logging requirement. In Tomlinson v. Combined Underwriters Life Insurance Co., Case No. 08-CV-259-TCK-FHM, 2008 U.S. Dist. LEXIS 65363 (N.D. Okla. Aug. 22, 2008), the court pointed to a local rule excepting from the logging requirement “‘ written communications between a party and its trial counsel after commencement of the action and the work product material created after commencement of the action.'” Id. at *2 (citation omitted). Even in the absence of such a local rule, few if any litigants log post-filing documents — either pursuant to an agreement with opposing counsel, or a tacit “mutually assured destruction” understanding that restrains both sides from raising the issue.

Although it normally would be best to explicitly agree with an adversary to exempt post-filing documents from any logging requirement, nearly every litigant (and court) simply ignores the technical logging requirement that presumably continues during litigation.