You can’t certify substantial compliance with just a “Partial Log”

In order to reduce the burden associated with submitting detailed information for every document withheld on a claim of privilege, the Bureau has established an optional two-step privilege log process. Rather than submitting a complete privilege log for all withheld documents and custodians, parties may opt to initially submit an abbreviated log of documents withheld on a claim of privilege. This is called a Partial Log. This initial log has very limited information about the withheld documents—it contains the identity of the custodian and the number of documents withheld from that person’s files. Bureau staff then has five business days to identify a limited number of people (five custodians or ten percent of the people searched, whichever is greater) for which a party must submit a Complete Log that sets out the complete information for withheld (and redacted) documents for each identified custodian. If five days pass after submission of the Partial Log and staff has not asked for a Complete Log for any custodians, the submitting party can certify substantial compliance at that time.

It is important to remember that parties choosing to submit partial privilege logs cannot certify substantial compliance until either the five days have passed without a request for a Complete Log, or, if such a request is made, the Complete Log is submitted. Instruction 6 of the FTC’s Model Second Request spells this out:

In place of a Complete Log of all documents withheld from production based on a claim of privilege, the Company may elect to submit a Partial Privilege Log for each Person searched by the Company whose documents are withheld based on such claim and a Complete Log for a subset of those Persons, as specified below:

(a) The Partial Log will contain the following information: (1) the name of each Person from whom responsive documents are withheld on the basis of a claim of privilege; and (2) the total number of documents that are withheld under a claim of privilege (stating the number of attachments separately) contained in each such Person’s files. Submit all non-privileged portions of any responsive document (including non-privileged or redactable attachments) for which a claim of privilege is asserted (except where the only non-privileged information has already been produced in response to this Instruction), noting where redactions in the document have been made. Provide the Partial Log in Microsoft Excel readable format.

(b) Within five (5) business days after receipt of the Partial Log, Commission staff may identify in writing five individuals or ten percent of the total number of Persons searched, whichever is greater, for which the Company will be required to produce a Complete Log in order to certify compliance with this Request.

Despite these instructions, some parties have attempted to certify substantial compliance by submitting only the initial Partial Log. This leads to unnecessary disputes because certifying substantial compliance bears on other obligations, such as updating other information and topping off document responses. And offering to extend an existing timing agreement without withdrawing the certification of substantial compliance misses the point: submitting a Partial Log is not substantial compliance. Because failure to follow the instructions in the Second Request can lead to unanticipated delays in certifying compliance, it’s best to remember that the Bureau will require a Complete Log for some custodians in most cases.

A little advanced planning can avoid last-minute problems. Parties often submit the Partial Log well in advance of completing their Second Request production. This allows parties to certify substantial compliance by including the Complete Log for any designated individuals along with the rest of the second request response.