Why the Beginning Should Be the End: The Argument for Exempting Postcomplaint Materials from Rule 26(b)(5)(A)'s Privilege Log Requirement

There is a state of uncertainty that is threatening to undermine the two most significant evidentiary protections in American jurisprudence: the attorney-client privilege and the work product doctrine. The Federal Rules of Civil Procedure require parties to explicitly assert privilege claims, usually by providing information about the privileged materials in the form of a “privilege log.” The Rules do not say whether this requirement applies to materials created or obtained after the filing of the complaint. But that is exactly when the attorney-client privilege and work product doctrine are most likely to protect not only the materials themselves, but also the information about them that would normally be included in a privilege log. Despite that undeniable fact, the courts are bitterly divided on whether these “postcomplaint” materials should be exempt from the privilege log requirement. In this Article, I propose an amendment to the Federal Rules of Civil Procedure that would exempt postcomplaint materials from the privilege log requirement. The attorney-client privilege and work product doctrine are intended to encourage communication between clients and attorneys, and to provide attorneys with a zone of privacy to prepare efficiently for trial, respectively. These activities are the most critical after the litigation has begun. Absent an exemption, an adversary could effectively require a party to create an ongoing “log” of communications and materials prepared during the course of a pending litigation. Such a burdensome requirement would effectively “chill” the crucial preparation that these protections were developed to ensure, subverting two key pillars of the adversary system. My proposal would provide the badly needed certainty and predictability parties must have in an era where the potential universe of discoverable electronic materials has few other limits.