Kathleen McDowell, Bobby Malhotra on ‘Hybrid’ Approach to Privilege Logs

Munger, Tolles & Olson attorney Kathleen M. McDowell and eDiscovery counsel Bobby Malhotra co-authored an article for Legaltech News that was published in the June 2017 issue of The American Lawyer and Corporate Counsel magazine about a “hybrid” technique designed to provide a more transparent and less time-intensive approach to creating privilege logs.  

In the article, Ms. McDowell and Mr. Malhotra describe the concern among lawyers that categorical privilege logs can be used to effectively “hide the ball” in eDiscovery by including more documents within a particular privileged category.

To counter this, Ms. McDowell and Mr. Malhotra suggest a “hybrid” sampling audit, where both parties agree on and exchange a categorical log for all or some of the underlying privileged documents. Then, a certain percentage of the documents in the categorical log would be presented as an individual-entry privilege log, randomly selected by a document review tool.

“Using this hybrid approach to privilege logging reduces the number of documents to be individually logged, while at the same time, through technological advances, provides transparency and defensibility in the privilege logging process,” the attorneys wrote.

Ms. McDowell’s areas of focus include representing defendants in securities, professional liability and employment litigation. She frequently advises clients in the financial services sector on eDiscovery issues.

Mr. Malhotra is eDiscovery counsel in the firm’s Los Angeles office. His practice focuses on navigating complex eDiscovery litigation issues.