New Privilege Log Rules Are Here – Is Your Team Ready?

As of today, December 1, 2025, amendments to the Federal Rules of Civil Procedure officially take effect, reshaping how parties must approach the timing and method of making privilege claims in federal litigation. The changes to Rules 26(f) and 16(b) require parties to discuss, at the start of discovery, how they will meet Rule 26(b)(5)(A)'s requirements for asserting and describing privilege claims. They also authorize courts to incorporate those agreements into scheduling orders.

While the Federal Rules do not mandate privilege logs, they remain the primary way parties satisfy Rule 26(b)(5)(A). The new amendments represent the most significant privilege log reforms in decades, shifting privilege practice from a late-stage task to an early-stage priority.

What's Changing

Under the amended rules, the parties' Rule 26(f) discovery plan must now include their "views and proposals" on how and when privilege claims will be made, including the format and specificity of any log. Courts may then adopt these terms in the Rule 16(b) scheduling order and enforce them.

The result is simple: privilege log planning can no longer wait until the tail end of document review. Teams must be prepared to negotiate privilege procedures at the outset.

These changes apply automatically to all cases filed today and in the future, and may also apply to pending cases "insofar as just and practicable."

Why It Matters

Privilege logging has long been expensive, time-consuming, and contentious. The explosion of email and messaging data has only made the process harder. Recent disputes in Epic Games v. Apple and FTC v. Amazon showed how privilege claims can unravel when subjected to judicial scrutiny.

By shifting privilege decisions forward in the civil litigation timeline, the new rules aim to:

• Reduce last-minute privilege disputes
• Promote early transparency and cooperation
• Give courts visibility into privilege processes sooner
• Establish structured, enforceable privilege protocols

Early privilege logs also give opposing counsel more time to evaluate and challenge assertions, increasing the importance of getting it right.

What Litigation Teams Need to Do Earlier

The biggest practical change is the need to front-load and prioritize the privilege workflows often reserved for later phases of discovery. In practice, teams should:

• Address privilege considerations during custodian interviews and identify privilege-heavy sources early.
• Map categories of privileged content before collection, with special attention to materials involving in-house and outside counsel.
• Build privilege assessment into your document review plan from the outset, not after review sets are complete.
• Design workflows and tagging schemes that support the anticipated logging protocol.
• Prioritize processing of privilege-heavy sources and incorporate privilege assessment into early case assessment to ensure readiness for the Rule 26(f) conference.

These steps require coordinated effort between litigation and eDiscovery counsel, project managers, vendors, and in-house stakeholders.

Key Issues to Negotiate Under the Amended Rules

Because the rules require privilege procedures to be addressed up front, teams should prepare to negotiate:

• Whether withheld materials may be logged categorically rather than individually
• Whether privilege logs may rely on metadata fields instead of narrative descriptions, and which metadata fields are acceptable
• Which information fields must be included (date and time information, senders and recipients, file types or data sources, etc.)
• Whether redacted documents require separate entries
• Whether certain categories (e.g., communications with outside trial counsel) can be excluded or logged in a reduced format
• How to represent email threads, message conversations, and document families, including attachments
• The timing of log production – tied to document productions, deposition dates, expert disclosures, or on a rolling basis
• What consequences will flow from missed logging deadlines
• Whether to incorporate protocols for addressing post-production treatment of privileged materials, including whether to seek a Rule 502(d) order regarding the inadvertent disclosure of privileged information

These decisions will determine the burden, clarity, and defensibility of privilege assertions throughout the case.

Risks for Teams That Don't Adapt

Starting today, failing to prepare early carries real risks:

• Earlier logs mean earlier challenges. Opposing counsel will have greater time to scrutinize privilege logs and challenge weaker privilege claims. Privilege logs should undergo internal stress testing and a quality control review before production.
• Lack of preparation may result in the court imposing an unfavorable or burdensome protocol, increasing litigation costs.
• Leaving inadvertent privilege disclosure unaddressed by failing to discuss seeking a 502(d) order may open the door to waiver issues, jeopardizing your client's confidential information and your overall litigation strategy.

Implications for In-House Counsel

Corporate legal teams should expect:

• Increased early-stage privilege work
• Greater need for coordination with business units
• More scrutiny of privilege assertions from adversaries and the courts
• Greater exposure if email practices and internal communications policies lack clarity or are inconsistently disseminated, audited, or enforced

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.