Tuesday, March 04, 2008

Privilege Logs

Effective April 1, 2008, parties who make a claim of privilege or protection in response to a discovery request for documents will be required to prepare a "privilege log" under new Civil Procedure Rule 26(b)(5) issued last week. The log must contain "the respective author(s) and sender(s) if different; the recipient(s); the date and type of document, written communication or thing not produced; and in general terms, the subject matter of the withheld information."

According to the Reporter's Notes accompanying the rule, "The requirement of a privilege log applies to a claim of privilege or right to protection asserted by a party only. This rule imposes no obligation to provide a privilege log on the part of a non-party who withholds privileged information after service of a subpoena for the production of documentary evidence under Rule 45(b), although a court would appear to have authority to order preparation of a log."

The full text of all Massachusetts civil rules is available at Mass. Rules of Civil Procedure.