When the attorney-client privilege is recognized and applied correctly, it can be a powerful tool. The privilege can help facilitate full disclosure of clients’ legal needs and allow attorneys to adequately represent those needs. Unfortunately, there is sometimes confusion about what constitutes privileged communication. This can result in the privilege being misapplied or inadvertently waived.
Defining Privileged Communication:
Privileged communication for law firms includes communications between attorneys and their clients. In order to assert privilege, two tests must be met:
- The parties must have a reasonable expectation that the communications will be private and confidential; and
- The purpose of the communication must be to obtain or provide legal advice.
Types of Privilege:
Each type of privilege serves a unique purpose in safeguarding sensitive information. Attorney-client privilege, for example, protects conversations between a client and their attorney. Work product privilege extends protection to documents and materials prepared by attorneys in anticipation of litigation. Understanding these distinctions is critical for legal professionals to effectively identify and redact privileged communications.
Navigating the Withholding and Redaction Process:
During litigation, legal professionals must often review terabytes of documents to protect privileged information. This process requires that teams of attorneys identify privileged information and then determine if that information or document should be withheld or redacted (removing only the privileged information and maintaining the rest of the document that does not fall under the umbrella of privilege). Failure to identify and withhold or redact privileged communications can have severe consequences, most significantly that it raises the possibility that the other side will see those privileged communications. Even if a party attempts to claw back a document that was mistakenly produced, there is still an issue because one can never truly “unring the bell.”
Challenges in Identification:
Identifying privileged communications can be a daunting task. Often, information subject to privilege is embedded within a broader set of documents, making it imperative for the legal team to be detail-oriented and extremely thorough. Additionally, the team must have a thorough understanding of the key players and issues in a given case, so that they know whose communications and work product should be considered privileged.
Technology’s Role:
In the digital age, technology plays a pivotal role in streamlining the redaction process. Advanced tools and software can assist the legal team in efficiently identifying and redacting privileged information. With proper attorney oversight, these technologies can enhance accuracy as well as contribute to a more cost-effective and time-efficient litigation process.
Understanding and identifying privileged communications within a litigation context is a multifaceted endeavor that demands precision and diligence. Legal teams must navigate this complex terrain with a keen understanding of the various types of privilege, leveraging technology where possible, and striking a delicate balance between transparency and the preservation of confidential information. In doing so, they can uphold the principles that support the attorney-client relationship. For an experienced privilege support team, contact Baer Reed today.
Mr. Reyes graduated with honors from the Ateneo de Manila University, where he received the Procter and Gamble Student Excellence Award. He obtained his Juris Doctor degree from the Ateneo de Manila School of Law. During law school, Mr. Reyes was part of the Philippine delegation to the Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. He was also a member of the Ateneo Society of International Law and the St. Thomas More Debate Society. He completed his internship at the Public Attorney’s Office. He wrote a thesis entitled: “To Kill A White Elephant: An Analysis of the Fiduciary Exception to the Corporate Attorney-Client Privilege”. Mr. Reyes is admitted to practice law in the Philippines and the State of New York.
Ms. Lardizabal-Manzano is a graduate of San Sebastian College-Recoletos, where she earned her B.A. in Political Science. In 2003, she received her law degree from Lyceum of the Philippines and was admitted to practice law in 2004.
Matthew Hersh earned a B.A. in Political Science from Columbia University in 1990 and graduated cum laude from Georgetown University Law Center in 1999. He also holds a master’s degree in international relations from the Georgetown University School of Foreign Service.
Cap. Avi Levak (Res. IDF) graduated from from Israel’s prestigious Ben-Gurion University of the Negev with a Bachelor of Science in Computer Science and Mathematics. He is also a Leadership and Communication coach trained in TuT coaching by Alon gal in Israel. Avi specializes in high-level, in-depth analysis of business and client needs, within systems and software strategy and architecture.
Ms. Tyler graduated cum laude from Georgetown University and received her law degree, cum laude, from Georgetown University Law Center. During law school, she interned at the United Nations Economic Commission for Europe. She also worked on The Tax Lawyer journal and was a member of the award-winning Barristers’ Council Mock Trial Team. Ms. Tyler is admitted to practice law in the State of California and the District of Columbia.
Ms. Cruz-Anonuevo graduated cum laude and top nine in her batch from Miriam College with a degree of Bachelor of Arts in InternationalStudies. She obtained her Juris Doctor degree from Ateneo de Manila University School of Law in Rockwell. During law school, she interned in Rivera, Santos, Maranan & Associates. She was also part of Ateneo’s Labor Law Bar Operations. She wrote her thesis on, “Stealing Privacy: Limitations on Media’s Photographic Invasion.,” Ms. Cruz-Anonuevo is admitted to practice law in the Philippines.
Ms. Aquino-Batallones obtained a Bachelor of Arts degree in Development Studies (with Minors in Global Politics and Hispanic Studies) from the Ateneo de Manila University. In 2011, she received her Juris Doctor degree from Ateneo de Manila University School of Law. During law school, she interned at Romulo Mabanta Buenaventura Sayoc & de los Angeles then became an intern of Ateneo Legal Services Center’s Clinical Legal Education Program.
Mr. De Guzman graduated from San Beda College with a degree of Bachelor of Arts Major in Economics and received his law degree from San Beda College of Law. He is multilingual and is fluent in three languages: Chinese, Filipino, and English. He was admitted to the Philippine Bar in 2003.