During the October 16, 2023 Advisory Committee on Civil Rules public hearing, Jonathan Redgrave testified regarding the proposed amendments to Rules 16(b)(3)(B)(iv) and 26(f)(3)(D) concerning the process of identifying and logging privilege and work product protections.  The proposed amendments are designed to reduce confusion over the inappropriate “default” by parties and courts to demand or expect that privilege logs must be done on a “document by document” basis, despite the burdens and cost imposed by the process and the ultimate lack of need or value resulting from the efforts. 

Jonathan’s testimony focused on the positive steps reflected in the proposed rules changes and accompanying draft Advisory Committee Note, but he also suggested that the Advisory Committee evaluate expending the same concepts holistically to Rule 26(b)(5)(A) and Rule 45(e)(2)(A) by adding language within the rule reflecting that the manner of compliance with subdivisions (A)(i) and (ii) or each rule should be determined in each case by the parties, recognizing and respecting consideration of burden, cost, proportionality, and materiality. He also addressed potential modifications to the proposed Advisory Committee Note.    

Jonathan has long advocated for strategies and solutions to the problems presented by traditional ineffective and overly expensive privilege logs.  Jonathan’s most recent submission on the issue, co-authored by Hon. John M. Facciola (ret.), is available here.