How do you build a privilege log during the review stage and what has to be on it under FRCP 26(b)(5)?

A privilege log is the record that explains why you are withholding documents that would otherwise be responsive in discovery. It is produced during the review stage of e-discovery, after collected material has been processed and reviewers begin coding documents for responsiveness and privilege.

Why FRCP 26(b)(5) requires it

Under the U.S. Federal Rules of Civil Procedure, a party that withholds information by claiming it is privileged or protected as trial-preparation (work-product) material must do two things: (1) expressly make the claim, and (2) describe the nature of the withheld documents, communications, or things in a way that, without revealing the privileged content itself, lets other parties assess the claim. The privilege log is how parties satisfy that second obligation. Failing to log adequately can risk waiver, so accuracy matters.

Building the log during review

The log is a byproduct of disciplined review coding. As reviewers flag documents, capture the basis for each privilege call so the log can be generated rather than reconstructed later.

A typical entry describes enough to evaluate the claim without disclosing it:

• Identifier — a unique document or control number.
• Date of the communication or document.
• Author/sender and recipients, including any cc/bcc, so the attorney-client or work-product relationship is visible.
• Document type (email, memo, draft).
• Privilege asserted — attorney-client, work-product, or another recognized protection.
• Subject-matter description — enough to show the claim is justified, but not the substance itself.

Practical guidance

Standardize how reviewers record privilege so entries are consistent. Watch for redactions (partially privileged documents) and for email threads and attachments, which often need entry-level treatment. Parties increasingly negotiate the log’s format and scope (including categorical logging) early, often in the meet-and-confer or a protective order, to control cost.

Note that requirements differ by jurisdiction. State courts and other countries have their own rules and expectations, and a court’s local rules or a case-specific order may impose additional detail. Confirm the governing standard before finalizing any log, and consult counsel on privilege determinations.