How to Prepare a Privilege Log: Rule 26(b)(5)(A), a Sample Log, and the 2025 Rule 26(f) Change

Here is how to prepare a privilege log in federal court: for everything you withhold as privileged or as trial-preparation material, expressly make the claim and describe each withheld item well enough that the other side can assess it, without revealing the privileged content. That is what Federal Rule of Civil Procedure 26(b)(5)(A) requires. The rule names no fields, so the log's job is to make the claim testable.

This guide covers federal practice. State courts have their own privilege-log rules, so check yours.

How to prepare a privilege log: start with a sample

Here is a fill-in log for a small commercial case. Use it as a privilege log template; the entries are invented for illustration.

Put a legend below the table naming every person, with title, employer and whether each is a lawyer. A reader cannot assess a claim if "Pat Lin" is only a name.

What each column does

• Log ID or Bates number. A stable identifier lets both sides refer to an entry. Use the Bates number if the document is partly produced in redacted form.
• Date, type, author, recipients. These show whether a lawyer was involved and whether the communication stayed inside the privileged circle. A third party on the distribution list is the first thing opposing counsel will look for.
• Privilege asserted. Attorney-client privilege and work-product protection have different elements and different waiver rules. Say which one applies to each entry. Do not write "privileged" alone.
• Description. This is where logs fail. "Email re: contract" tells the reader nothing. "Email from counsel providing legal advice regarding termination provisions" tells the reader the subject, the basis for the claim, and nothing the privilege protects.

Privilege log requirements under Rule 26(b)(5)(A)

The text is short. When a party withholds information otherwise discoverable by claiming privilege or trial-preparation protection, it must "(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5)(A).

Three points follow from it:

1. The standard is functional. The rule does not say "log." It asks whether the description lets the other side assess the claim.
2. Silence is not a claim. Withholding a document without saying so does not satisfy clause (i).
3. The description is not the place to argue. State facts: who, to whom, when, for what purpose. Legal argument belongs in a brief if the entry is challenged.

Rule 45(e)(2)(A) imposes the same duty on a person who withholds subpoenaed material, in nearly identical words. Fed. R. Civ. P. 45(e)(2)(A). If you are the non-party responding, or the party serving the subpoena, see our guide to objecting to a subpoena.

Three formats, and when each fits

For most small-firm cases, the traditional log is right. It is cheap to build when the withheld set is modest, and it is the format least likely to draw a challenge.

Categorical and metadata logs save time in a large production, and they are safest when the other side agrees or the court orders them. The 1993 committee note to Rule 26 says item-by-item detail "may be unduly burdensome" for voluminous withholdings, "particularly if the items can be described by categories," but a categorical log served unilaterally invites a fight over whether it lets the other side assess each claim. A common compromise is to exclude post-complaint communications with litigation counsel from logging altogether, by agreement. Get that agreement in writing.

The December 2025 change to Rules 26(f) and 16(b)

Amendments effective December 1, 2025 added privilege-log logistics to the discovery planning process. The rule text and the 2025 committee notes quoted below come from Cornell LII's copies of Rule 26 and Rule 16.

Rule 26(f)(3)(D) lists the timing and method. The discovery plan must state the parties' views on "any issues about claims of privilege or of protection as trial-preparation materials, including the timing and method for complying with Rule 26(b)(5)(A)." Fed. R. Civ. P. 26(f)(3)(D). The "timing and method" language is the part that took effect in December 2025.

Rule 16(b)(3)(B)(iv) lets the court act on it. The scheduling order "may" include the timing and method for complying with Rule 26(b)(5)(A), along with agreements on asserting privilege after production. Fed. R. Civ. P. 16(b)(3)(B). That is permissive. Only the 26(f) topic is mandatory.

What did not change. The content requirement in Rule 26(b)(5)(A) is the same. The committee note to the Rule 16 amendment states that "there is no overarching standard for all cases," and that the court's order on the method "does not depend on party agreement." Nothing in the amendment makes a categorical or metadata log required or preferred. It moves the argument to the start of the case, before anyone has withheld anything.

A Rule 26(f) conference checklist

The conference must occur "as soon as practicable" and at least 21 days before a scheduling conference or scheduling order is due. Fed. R. Civ. P. 26(f)(1). Initial disclosures are due within 14 days after it unless the court or the parties set another time. Fed. R. Civ. P. 26(a)(1)(C). Put these items on the agenda:

• Format. Traditional, metadata or categorical, and for which categories of documents.
• Due date. A fixed date, or a rolling schedule tied to production. The committee note describes rolling production as a way to surface disputes early.
• Exclusions. Communications with litigation counsel after the complaint, and work product created after suit.
• Threading. Whether an email chain gets one entry or one per message.
• Identification of lawyers. A shared legend, so both logs name attorneys the same way.
• Clawback. A procedure for privileged material produced by mistake, and whether to ask the court for an order under Federal Rule of Evidence 502(d), under which a court-ordered non-waiver also applies "in any other federal or state proceeding."
• Challenges. How and when either side may challenge an entry before moving to compel.

Write the result into the discovery plan. Calendar the 26(f) date, the 26(a)(1)(C) date and the log date on the matter the day the schedule is set.

What goes wrong, and what waiver risk looks like

Most privilege-log fights start with vague descriptions, missing recipients, late service, or a log that changes after the other side objects. Format is rarely the trigger.

The leading case on timing is Burlington Northern & Santa Fe Railway Co. v. United States District Court, 408 F.3d 1142 (9th Cir. 2005). The Ninth Circuit held that "boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege," but rejected a per se rule that a log served after Rule 34's 30-day period waives the privilege. Courts instead use the 30 days "as a default guideline" and weigh the specificity of the assertion, its timeliness, the size of the production, and other circumstances, in a "holistic reasonableness analysis." On its facts the court affirmed a waiver finding: the log arrived five months late, the party was a sophisticated repeat litigant, and the log was deficient and later changed.

The case binds only the Ninth Circuit. Other courts apply their own tests, and some are stricter. The safe course is the same everywhere:

1. Serve the log with the production, or on the date the parties agree.
2. Describe each entry with facts, not labels. The same discipline applies to the objections that precede the log; see boilerplate objections in discovery.
3. Fix a deficient entry as soon as it is flagged. Waiting for the motion invites the argument the court accepted in Burlington.
4. If a motion to compel follows, see our guide to the motion to compel for how courts analyze it.

Building the log from your own files

The hard part of a log is finding the withheld set and reviewing it consistently. A matter-organized document vault helps: CaseRead's document vault keeps each matter's files together, and the matter workspace holds its deadlines, so the reviewer works from one set and the 26(f) and disclosure dates sit on the matter's calendar. It does not write the log for you. Choosing what is privileged is a lawyer's judgment, and uploading client files to a general-purpose chatbot raises its own risk; see whether AI use waives attorney-client privilege. For file organization generally, see our piece on law firm document management.

Frequently asked questions

What must a privilege log include?

Rule 26(b)(5)(A) requires you to expressly make the claim and describe the nature of each withheld document, communication, or thing so the other side can assess the claim without learning the privileged content. The rule lists no fields. In practice courts expect an identifier, date, author, recipients, the privilege asserted, and a description.

Is a privilege log required in federal court?

The rule requires a written description of what you withhold, not a log by that name. A document-by-document log is the usual way to comply, but the 2025 committee note to Rule 16 says there is no overarching standard for all cases. Parties may agree to another method, and the court may order one.

When is a privilege log due?

No rule sets a single date. Absent an agreement or order, the Ninth Circuit treats the 30-day Rule 34 response period as a default guideline and weighs specificity, timeliness and the size of the production case by case. Since December 2025, the Rule 26(f) discovery plan must address the timing and method, so settle it there.

Can you use a categorical privilege log?

Yes, if the categories still let the other side assess the claim. The 1993 committee note to Rule 26 recognizes that voluminous withheld items can be described by categories. A categorical log groups similar documents by type, date range, author and recipients. Get the other side's agreement or a court order first, and expect disputes if the categories are broad or mix privileged and business communications.

What happens if a privilege log is inadequate?

The other side can move to compel, and a court may find the privilege waived. In Burlington Northern, the Ninth Circuit rejected automatic waiver for a late log but affirmed a waiver finding where the log arrived five months late and was deficient. Courts weigh the circumstances, so a fix made quickly helps.

Check the citations in the brief that follows

A log is only part of a privilege fight. If an entry is challenged, the brief that defends it, or attacks the other side's log, will cite cases. Before you file, run the draft through the Hallucination Shield. It is free with no signup, checks up to 50 citations per run, and flags any it cannot verify. Reading each case to confirm it says what you claim is still your job.

This article is for general information and is not legal advice. For guidance on a specific case, consult a licensed attorney in your jurisdiction.