The Categorical Imperative: In Search of the Mythical Perfect Privilege Log So Devoutly to Be Wished

Though evidentiary privilege is amongst the most perplexing fields of the law, privilege logs are assuredly amongst the most vexing. With vastly increased discovery in the age of electronically stored information, the burdens incurred by individually articulating claims of privilege on every document have grown gargantuan. In desperate search of efficiencies, many commentators and courts have looked to “categorical” privilege logs that assert claims over generic groups of similar material rather than over each item seriatim. Disputes, however, have remained distressingly acrimonious, as these new categorical logs have proven no cure-all for the fundamental divergence of interests between litigants in pitched battle.

Nonetheless, the furious debate over the merits and demerits of categorization offers glimmers of hope for a less rancorous and more fruitful future for privilege logs, if not for discovery practice as a whole.