In the increasingly complex world of eDiscovery, one area that consistently presents significant challenges is privilege review. A defensible and efficient privilege review strategy in eDiscovery is vital for law firms and corporations to protect sensitive communications, minimize risk, and maintain compliance with legal standards. Without careful planning, privilege review can quickly become a costly and error-prone process riddled with inconsistencies, which can lead to inadvertent disclosure of privileged information and potentially damaging consequences.
Why Privilege Review Matters
Privilege review is the process of identifying and withholding documents protected from production by attorney-client privilege or work product doctrine. Given the massive volumes of electronically stored information (ESI) generated in modern litigation, ensuring accuracy in privilege review is essential. A single oversight can waive privilege protections, undermine case strategy, and result in costly sanctions or reputational damage.
Laying the Foundation: Key Considerations
The foundation of an effective privilege review strategy in eDiscovery starts with thorough planning. Legal teams must carefully define the scope of review, set clear guidelines, and leverage both technology and human expertise.
- Establish Clear Protocols
Before review begins, define privilege categories, create standardized coding protocols, and develop a privilege log template. This ensures consistency and reduces subjectivity when reviewers encounter close calls. - Leverage Technology
Advanced technology-assisted review (TAR), AI-driven analytics, and keyword filters can help identify privileged communications more efficiently. While technology should never replace attorney judgment, it can narrow review sets and highlight likely privileged material. - Train and Monitor Review Teams
Effective privilege review requires well-trained reviewers. Ongoing training, calibration exercises, and regular quality control checks ensure accuracy and consistency across the team. Supervising attorneys should remain actively involved to resolve ambiguities and make final calls on sensitive issues.
Building Defensibility into Privilege Review
Defensibility is the cornerstone of any privilege review strategy in eDiscovery. Courts expect organizations to demonstrate reasonable efforts to protect privileged information. Documenting processes, maintaining detailed logs, and showing that privilege determinations are made in good faith can protect against challenges.
- Privilege Logs: A well-prepared privilege log is a crucial element of defensibility. It should provide sufficient detail about withheld documents without revealing privileged content. Consistency, completeness, and clarity are key.
- Audit Trails: Tracking reviewer decisions and maintaining audit logs can demonstrate the reasonableness of the process if challenged.
- QC Measures: Layered quality control, including random sampling and second-level review, helps identify errors before production and reinforces defensibility.
Balancing Efficiency with Accuracy
Privilege review is often the most time-consuming and expensive phase of eDiscovery. Balancing cost efficiency with the need for accuracy requires a thoughtful approach:
- Early Identification: Proactively identify custodians and data sources likely to contain privileged material before large-scale collection and review. This reduces data volumes and focuses efforts.
- Tiered Review: Implement a tiered review structure where high-risk documents receive more intensive review, while lower-risk categories can be handled with lighter oversight.
- Strategic Use of Outside Support: Partnering with experienced legal service providers can reduce costs while maintaining quality, particularly for large-scale privilege reviews.
The Role of Collaboration and Communication
Successful privilege review strategies depend on open communication between legal teams, clients, and outside partners. Clear reporting, real-time updates, and proactive issue resolution ensure the process stays on track and risks are mitigated.
Additionally, early discussions with opposing counsel about privilege protocols can provide extra protection against privilege waiver and reduce disputes.
Evolving Best Practices
As technology and case law evolve, so too must privilege review strategies in eDiscovery. Emerging trends include greater reliance on AI-driven predictive coding, advanced analytics to detect sensitive communication patterns, and continuous improvement through post-matter assessments. Organizations that embrace these best practices will be better positioned to minimize risk, control costs, and safeguard privileged information.
Privilege review will always carry inherent challenges, but with a carefully designed strategy, legal teams can build a defensible process that withstands scrutiny. By combining structured protocols, advanced technology, rigorous quality control, and effective collaboration, law firms and corporations can significantly reduce the risks of inadvertent disclosure. In an environment where accuracy and defensibility are vital, a well-executed privilege review strategy in eDiscovery is a necessity. For experienced privilege review support, 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.
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. 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.
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.
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.
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. 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.