Privilege Review: A Specialty of Document Review

The litigation process is an extensive one. However, it is an extensive process that is evolving into a more and more exact science. Thus giving attorneys a product that is essentially even easier to review and easier to prepare for settlement or trial. After the initial data culling process, a litigation team will perform a detailed review of the documents to highlight the most appropriate to the case.

There can be many elements to the document review process, but, first and foremost, documents must be responsive. The review exercise must answer the question – do these documents touch or concern a claim or defense for this matter, and are they proportional to the needs of the case? And, does the relevance and proportionality to the case meet the level of the document review process. Once these questions are answered, the document review process can be outlined and continue through production. There are all types of document review workflows. Here, we will further investigate the ins and outs of privilege review:

Locating the Potential Privilege

Privileged matter in the court of law is information allowed to be kept in secrecy between the attorney and client, or kept in privilege based on work product doctrine (to name two of the most common forms of privileged data). Different areas and different courts of law have differing ranges when it comes to what can be considered privilege and what may not. Accordingly, some courts may require certain details, including metadata, about the files a party intends to invoke privilege on. Similar to the responsiveness of other documents during a review, a privileged instance can be difficult to determine, and may only be a small portion of a voluminous document. A good review procedure is to confer with your client as to the potential terms/phrases, domains, attorney-names and firms, etc. that concern potential privilege. Perhaps one of the best forms of searching is tallying law-firm domains, and combining these results, using BOOLEAN connectors, with other words that are typically found within privilege-files, like; ‘attorney,’ ‘esquire,’ ‘attorney-client,’ ‘work product,’ and abbreviations of same. After locating the potential privilege-documents, it’s important to tag them appropriately for later review, further scrutiny and entry into the privilege log.

privilege review

Clawback Protection

Many attorneys stipulate to clawback provisions, although a court may order such protection measures, either sua sponte or by motion practice. Regardless, this form of agreement is not meant to allow for the privilege review to be done with disregard to detail but, rather, serve as a method of protection in the event privilege information is inadvertently produced to the opposing party, despite reasonable efforts to avoid same. If such inadvertent disclosure occurs, the producing part will still have the burden to show the following: 1 – The Disclosure was inadvertent; 2 – The holder of the privilege or protection took reasonable steps to prevent disclosure; and 3 – The holder promptly took reasonable steps to rectify the error.

Although the privilege review may be done simultaneously with the other phases of document review, it would be wise to have a special team of reviewers scrutinizing these privileged documents. This is primarily because privilege review requires a very close eye and intense legal scrutiny. Gray areas like partial privileged documents can be quite complicated and should be reserved for the most experienced litigators to handle.

Redacting Necessary Documents

There will be a wide range of documents for review, during discovery. Some documents may need to be labeled as completely privileged, and these will be set aside and withheld from the court with an appropriate explanation. However, other documents may be partially responsive and partially privileged. In this case, the documents will need to be redacted, as to censor the privilege asserted before it is produced. To be clear though, a document that is fully privileged will not be considered for redaction, as it will be withheld in its entirety, notated in the privilege log, and usually replaced with a place-holder at the time of production.

privilege review

The Privilege Log

When withholding privileged information, a privilege log must be kept to present to the opposing parties, as an explanation for why these documents are not present. The log excludes any specifics that disclose the privilege itself, however, details must be included in the log that identify the file/document by some unique characteristic (usually an electronic identifier or hash-value), as well as certain metadata that may include bibliographic-fields, common to the file type withheld. It’s important to be proactive about this step. More often than not attorneys fail to defend their privilege exclusions, and find themselves reverting back to the database or set of documents if challenged by opposing counsel. In addition, there are stringent legal and formatting rules to follow when it comes to writing the privilege log, so litigators must be very careful and aware before embarking. Fortunately, common database management platforms allow for seamless creation of these privilege logs, and assembling these logs during discovery is something that a trusted litigation support vendor should be able to assist with.

For attorneys, choosing the right litigation support team can make the world of difference when it comes to saving time and winning a case. If you are looking for specialty in any branch of eDiscovery or trial preparation, contact us today at LITeGATION. Our staff consists of analytical, experienced minds ready to tackle even the most complicated document reviews and litigation needs.

FRE 502(B)
James Cortopassi
James Cortopassi

James Cortopassi brings nearly 20 years of eDiscovery experience to his practice as a leader in litigation support and eDiscovery coordination. Mr. Cortopassi has managed thousands of cases involving forensic collections, data processing & hosted solutions, managed document review, ESI productions, trial technology services, and workflow-innovation.

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