When documents are withheld from discovery on the ground of attorney-client privilege, the privilege proponent must disclose sufficient information about the allegedly privileged communications to give the opponent a fair opportunity to respond. While this process begins informally, with an exchange of letters, e-mails and telephone calls, continued resistance to discovery demands will result in the initiation of the formal dispute resolution process under the Federal Rules of Civil Procedure. This can begin with the privilege proponent's seeking a protective order from the presiding judge, but more often is the product of the demanding party's filing a motion to compel production.

This formal process requires a delineation of each relevant document being withheld from production along with information that is critical to an assessment of the legitimacy of the privilege claim. This is usually done in a privilege log or index that includes the following items:

• number(s) assigned to the document (if each page is numbered, this will identify how many pages are in the document);
• the document's date;
• the author;
• those to whom it was addressed (addressees);
• those who were given copies (copyees and second-level distributees);
• a brief description of its content, sufficient to permit an assessment of whether the assistance being sought was legal counsel;
• the privileges that are being asserted as justification for withholding the document from production; and
• the affidavits being relied on (if more than one document is addressed in an affidavit, the relevant paragraphs of the affidavit should be indicated for each document).

The supporting affidavits are essential in identifying the individuals who were sent or received copies and the business responsibilities that justified their access to the confidential communications The affidavits are also necessary for establishing that the company's policy limited secondary distribution of confidential communications to those within the company with a need to know in the scope of their employment, and thereby ensures the preservation of confidentiality.
For the judge to adequately perform her independent fact-finding role, the court should examine each contested communication in camera--that is, in chambers outside the presence of the parties. Such examinations are necessary to verify the accuracy of the privilege proponent's description of the document's content. Too frequently, however, judges shun such inspections because they are so time-consuming.

Recently, the Ninth Circuit, in Fiduccia v. United States Dept. of Justice, 1999 U.S. App. LEXIS 18193, *17-18 (9th Cir. Aug. 4, 1999), has approved a less formal process:

"A plaintiff's lawyer requests an insurance claims file, and defendant's lawyer must disclose sufficient description and reasons for what is not being produced - witness statements withheld based on attorney work product, letters to and from counsel withheld based on attorney-client privilege, and so forth. Plaintiff's lawyer is entitled to know the grounds. Some lawyers dictate detailed lists of what they are not producing, some produce redacted copies annotated in the margin to show what is redacted and why, and some pre-pare affidavits. The form of disclosure is not critical. What matters is the substantive adequacy of the disclosures, in whatever form, to enable the requester to be able to make an intelligent judgment whether to contest claims of nondiscoverability and the court to decide them. Any form-letter, Vaughn index, affidavit, copy of redacted document - may be adequate or inadequate, depending on the circumstances. Because the redacted documents sufficed in this case to show the requester and the district court what was not disclosed and why, the district judge had an 'adequate factual basis' for decision and therefore did not err in deciding not to require a superfluous Vaughn index or affidavit." [Emphasis added]

These procedures are helpful and may be appropriate in situations where the claims of privilege are simple, straightforward, and obvious. This situation, however, is the exception rather than the rule: in most instances, these procedures will be inadequate.

First, if an evidentiary hearing is not held at which witnesses testify, it is unclear without supporting affidavits how the privilege proponent could present facts upon which the confidentiality of a document could be determined, and from which the court could be assured that the initial confidentiality has been maintained. This process seems to ignore the critical element of confidentiality.

Second, because most courts resist the in camera examination of the contested documents, there is no way for the court to verify that the representations of legal counsel about the documents content are accurate. This is true even if the documents are partially produced in a redacted form.

Consequently, under a procedure that does not employ an index, supporting affidavits and in camera inspection of the entire document by the judge, inadequate information is being given to both the adversaries and the judge. As a consequence, the judge is delegating her role as fact finder on each element of the privilege claim to the lawyers of the adversaries who prepared the pleading--a dangerous practice in the best of circumstances.

Courts are justifiably seeking simplicity in procedures for the resolution of privilege claims. While this motivation is understandable in a judicial system that has the broadest and most intrusive discovery provisions in the world and, as a corollary, the largest number of privilege claims the consequences of this simplicity may ultimately undermine the judge's fact finding role. Litigants, as a consequence, ought to both expect more and be prepared to give more in the privilege resolution process.

If courts are truly concerned about "the substantive adequacy of the disclosures . . . to enable the requester to be able to make an intelligent judgment whether to contest claims of nondiscoverability," they will require that each claim be justified through oral testimony or supporting affidavits. If courts are to perform their independent fact finding role, the claims that are substantiated by these representations should be followed by in camera inspection of the contested communications.