Early Privilege Protocols: Navigating The 2025 Amendments To Federal Rules 26 And 16

Late last year¹, amendments to the Federal Rules of Civil Procedure took effect. The changes to Rules 26 and 16 focus on streamlining discovery, particularly regarding privilege and work product, by mandating that parties address these issues at the initial Rule 26(f) conference.

Specifically, the amendments require the 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. The parties' Rule 26(f) discovery plan must now include their "views and proposals on any issues about claims or privilege...," including "the timing and method for complying with Rule 26(b)(5)(A) and any agreements the parties reach for asserting claims of privilege....," including the format and specificity of a privilege log, if any, while empowering the courts to incorporate those agreements into Rule 16(b) scheduling orders for enforcement purposes.