The Federal Rules of Civil Procedure and many states’ rules allow respondents to withhold information requested through discovery by asserting the information is protected by privilege. However, several potential issues can arise during the review process for privileged documents.
- Background. In order to identify relevant and privileged documents, reviewers need to have enough background on the case to understand what they’re looking for – and looking at. Without this base of knowledge, the risk of misguided review calls and misclassified communications is increased. Some examples of helpful background information include:
- Attorney lists (both inside counsel and outside law firms),
- Other cases that the company may have been involved in, and
- Potential legal issues that may be discussed in the documents.
- Failing to Understand What Is Privileged. When document reviewers don’t have a solid understanding of what constitutes a privileged communication, records can be misclassified. Attorney-client privilege applies only to certain types of communications. Reviewers should review potentially privileged documents critically before categorizing them as privileged.
- Multiple Types of Documents to Be Withheld. There are three means by which documents can be redacted or withheld during the privilege review process: (1) attorney-client privilege; (2) the work product doctrine; and (3) joint defense privilege, also known as common interest privilege. The review team should be familiar with all three types and whether it is appropriate to redact or withhold in each instance.
- Privilege Log. When a reviewer identifies a document as privileged, information about the communication should be added to a privilege log. A good privilege log will include the date of the communication, its author and recipients, the type of document, a general description of the document’s contents, and the reason privilege is claimed. If a privilege log doesn’t include enough information, the court and opposing counsel will not be able to appropriately evaluate the claim of privilege.
- Quality Control. Finally, privilege review processes that don’t incorporate substantive quality control measures can result in the disclosure of privileged information, or in non-privileged documents being misidentified as privileged. Both scenarios can create complicated discovery issues, because documents may need to be clawed back, or additional documents may need to be produced. It is simpler and more time-efficient to implement quality control measures that specifically address privileged communications.
Baer Reed provides privilege review and other legal support solutions to law firms and in-house legal teams around the globe. To learn more, contact us online or call us today at 888-433-1990.
- On September 17, 2021
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