The Advisory Committee on Civil Rules published proposed amendments relating to the early contemplation of privilege logs for formal comment in August 2023. The proposals would amend Rule 26(f) (to direct producing parties to address how they will address claims of privilege or protection as trial-preparation materials in their discovery plan) and Rule 16(b) (to prompt the court to include provisions about complying with claims of privilege in scheduling or case management orders).

During the six-month formal comment period, AAJ and plaintiff attorneys largely endorsed the rule as-published, but recommended that the rule provide a definition of a privilege log. Plaintiff-side commenters also supported the removal of overly one-sided language related to the costs imposed on producing parties from the accompanying Committee Note and emphasized the need for the Note to address overdesignation head-on.

 

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