sboghossian Privilege Log Drafting
Purpose
A privilege log is a mandatory component of discovery and disclosure compliance whenever a party withholds documents on privilege or work-product grounds. An incomplete or inaccurate log exposes the withholding party to court sanctions, waiver of privilege, and adverse inferences. This workflow drafts log entries systematically from a document set, producing a compliant log without revealing the protected content.
Inputs
| Input | Required | Notes |
|---|---|---|
| Document set (privilege candidates) | Yes | Output from [[pa-workflow-litigation-discovery-first-pass-tagging]] is the standard upstream feed |
| List of attorneys of record | Yes | Internal and external counsel — needed to identify attorney communications |
| Applicable forum / court | Yes | Determines log format and privilege standards |
| Date of litigation / claim | Recommended | For work-product dating (materials prepared "in anticipation of litigation") |
| Log format requirements | Optional | Some courts specify exact column requirements — override defaults if so |
Privilege Standards by Jurisdiction
Attorney-Client Privilege
| Jurisdiction | Standard | Key nuances |
|---|---|---|
| US federal | Communication from/to attorney; legal advice purpose; confidential | Applies to in-house counsel; subject-matter waiver risk; common interest doctrine available |
| UK | Legal advice privilege (advice-seeking communications) + litigation privilege (docs for dominant purpose of litigation) | Litigation privilege is broader; Three Rivers distinction applies to in-house counsel communications |
| DIFC | English common-law standard applies | DIFC Courts follow English privilege doctrine; Three Rivers may be applied |
| ADGM | English common-law standard | Same as DIFC |
| UAE onshore | No statutory attorney-client privilege equivalent | Practical confidentiality is respected; formal privilege doctrine as in common law does not exist; flag for counsel to determine case-by-case |
| KSA | No formal statutory privilege | Licensed Saudi lawyers have professional confidentiality obligations; structural protection is weaker than common law |
| Lebanon | Professional secrecy (sirr mihnawi) for licensed attorneys | Civil-law confidentiality; court-filing privilege is recognized but doctrine is less developed |
| Egypt | Professional secrecy for licensed attorneys | Similar to Lebanon |
Work-Product Doctrine
Applies to documents and mental impressions prepared by or for a party or its attorney in anticipation of litigation. In US federal courts (FRCP 26(b)(3)), opinion work product (attorney's mental impressions) enjoys near-absolute protection; factual work product is discoverable on showing of need. DIFC/ADGM: litigation privilege serves a similar function. UAE/KSA/LB/EG: no equivalent doctrine; approach on a case-by-case basis through professional secrecy.
Log Entry Drafting
Required Fields
| Field | Content | Notes |
|---|---|---|
| Document number | Sequential log reference | |
| Date | Date of document | Use document metadata; flag if metadata is unreliable |
| Author | Full name and role | Note if attorney |
| Recipient(s) | Full name(s) and role(s) | CC/BCC where relevant |
| Document type | Email / memo / draft / report / notes | |
| Privilege basis | ACP, WP, or both | See codes below |
| Description | Nature of document without revealing privileged content | See drafting rules below |
| Redaction note | Full withhold / partial redact | If partial, note what portion is withheld |
Privilege Codes
- ACP: Attorney-Client Privilege — communication seeking or providing legal advice to/from legal counsel
- WP-F: Work Product (Factual) — prepared in anticipation of litigation; factual content
- WP-O: Work Product (Opinion) — attorney's mental impressions, conclusions, or legal theories
- CI: Common Interest — shared privilege between parties with aligned legal interests
- 3P: Third-Party Privilege — e.g., accountant-client, mediation privilege (where applicable)
Description Drafting Rules
The description must convey enough information to allow the opposing party to assess the privilege claim — without revealing the privileged content itself.
Correct format:
Email from external counsel to CFO dated [date] transmitting legal advice regarding regulatory filing obligations under [regulation].
Too vague (challengeable):
Email regarding legal matters.
Too revealing (waiver risk):
Email from counsel advising that the payment structure violates the regulatory threshold and recommending a restructuring to avoid detection.
Guidelines:
- Identify the legal subject matter at a categorical level (contract review, regulatory compliance, litigation strategy)
- Identify the legal counsel involved by role (outside counsel, in-house General Counsel)
- Do not quote the substance of the advice
- Do not include trade secrets or commercially sensitive information in the description even if not privileged — those should be noted separately
Output Format
Standard Log (spreadsheet / table)
| Log No. | Date | Author | Recipient(s) | Type | Privilege | Description | Withheld/Redacted |
|---------|------------|-------------------|---------------------|-------|-----------|----------------------------------------------------------|-------------------|
| PL-001 | 2023-10-15 | Jane Smith (GC) | CEO; CFO | Email | ACP | Email from General Counsel providing legal advice on | Withheld in full |
| | | | | | | proposed joint-venture structure under UAE Federal Law. | |
| PL-002 | 2023-11-01 | External Counsel | Jane Smith (GC) | Memo | ACP; WP-O | Memo from outside counsel transmitting litigation | Withheld in full |
| | | | | | | strategy assessment for pending DIFC arbitration. | |
Cover Letter / Certification (US FRCP 26(b)(5))
The log is accompanied by a certification that:
- A reasonable inquiry was conducted
- All withheld documents are identified
- The privilege claimed is believed in good faith to apply
Common Mistakes
- Describing a document as "legal advice" when the communication is purely commercial (business advice by an attorney is not automatically privileged)
- Withholding documents authored by in-house counsel on purely business topics — especially vulnerable in UK/DIFC proceedings (Three Rivers limitation on in-house ACP)
- Including documents on the log that are clearly not privileged (over-designation invites a court order to re-review and produce)
- Failing to list common-interest participants — the common-interest doctrine must be asserted affirmatively
- Sending a draft to a third party (non-attorney) and claiming privilege — third-party disclosure generally waives ACP unless common-interest applies
Jurisdictional Filing Requirements
- US: FRCP 26(b)(5) — description must enable the opposing party to assess the privilege claim. Many courts' local rules specify exact log format.
- UK: CPR 31.19 — claim for withholding inspection; court may order inspection to assess the claim.
- DIFC: DIFC Practice Direction — follows CPR approach; electronic log submission via e-filing portal.
- UAE onshore: No statutory privilege log requirement; produce to court on request with explanation.
- KSA: Documents withheld based on professional confidentiality explained by counsel in written submissions.
Related Skills
- [[pa-workflow-litigation-discovery-first-pass-tagging]]
- [[pa-workflow-litigation-brief-cite-checker]]
- [[pa-workflow-litigation-motion-template-library]]
- [[pa-workflow-litigation-deposition-binder-builder]]