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85 Tul. L. Rev. 109 (2010-2011)

handle is hein.journals/tulr85 and id is 111 raw text is: Why the Beginning Should Be the End: The Argument for Exempting Postcomplaint Materials from Rule 26(b)(5)(A)'s Privilege Log Requirement Douglas C. Rennie* There is a state of uncertainty that is threatenig to undernnne the two most significant evideniary protections in American junsprudence: the attorney-client privilege and the work product doctrine The Federal Rules of Civil Proedure require parties to explicitly assert privilege clauns, usually by providing information about the privileged mateials i the form ofa 'privilege log The Rules do not say whether this requirement applies to matenals created or obtamed alter the filing of the complaint But that is exactly when the attorney-client privilege and work product doctrine ar most likely to protect not only the matenals themselves, but also the information about them that would normally be included in a privilege log. Despite that undeniable fac4 the courts ar bitterly divided on whether these 'jpostcomplaint matenals should be exempt from the pivilege logrequirement In this Anicle, I propose an amendment to the Federal Rules of Civil Procedure that would exempt postcomplaint matenals firm the pivilege log requirement The attorney-client privilege and work product doctrine am intended to encourage communication between clients and attorneys, and to provide attorneys with a zone ofprivacy to prepawe efficiently for ria, respectively These activities air the most critical after the litigation has begun. Absent an exemption, an adversary could effectively requie a party to crate an ongoig log of communications and matenals prepawrd during the course of a pending litiation. Such a burdensome requirement would effectively chi7 the crucial prepartion 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 potentia universe ofdiscoverable electronic matenalshas few otherlinits. I. INTRODUCTION.. .................................... 111 II. BACKGROUND ................................ 113 A. The State ofDiscovery ........................ 114 B. TheAttomey-ClentPiviege. ......... .............. 117 C The Work Product Doctne............................. 120 D TheAttomey Ethical Obligation To Keep Client Information Confidentid...................... 123 E Rule 26b)(5)(A) and the Pnviege Log............................ 124 * 0 2010 Douglas C. Rennie. Visiting Legal Skills Fellow, New York Law School. I thank Kevin Noble Maillard, Eric Chaffee, Anne Goldstein, Michael Botein, Lenni Benson, Eugene Cerruti, Peter Sherwin, Scott Eggers, Damien DuPont, Brooke Spigler, Kevin Passerini, and Jerry Dasti for their helpful comments and encouragement. 109

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