Privilege review remains one of the most sensitive and risk-prone phases of eDiscovery. The ability to accurately identify, withhold, and defend privileged information is essential for maintaining client confidentiality and ensuring compliance with discovery obligations. And yet, as data volumes expand and deadlines tighten, law firms and corporate legal teams face increasing challenges in balancing accuracy, defensibility, and efficiency.
Establishing a defensible privilege review process is about building a framework that can withstand scrutiny from courts and regulators while allowing teams to move quickly and confidently through large data sets. The key lies in adopting strategies that combine technology, structured workflows, and quality controls to achieve consistency and precision throughout the review lifecycle.
Defining a Defensible Privilege Review
A defensible privilege review process is one that can demonstrate to opposing counsel or a court that reasonable steps were taken to protect privileged material. It involves documented procedures, consistent application of privilege criteria, and robust quality assurance measures. Defensibility does not require perfection, but it does demand transparency and repeatability.
When privilege determinations appear inconsistent or poorly documented, the risk of privilege waiver, sanctions, or reputational harm increases significantly. A well-structured process mitigates those risks by ensuring that each decision is traceable and supported by a clear rationale.
Building the Framework
An effective privilege review process begins long before the first document is coded. It starts with planning and the creation of defensible protocols. Legal teams should identify privilege categories, establish decision criteria, and create privilege logs that meet jurisdictional requirements. These foundational elements serve as the blueprint for consistent and defensible review.
Technology can be part of this framework. Modern eDiscovery platforms allow teams to leverage analytics, predictive coding, and concept clustering to identify potentially privileged communications early in the process. Automated detection of attorney names, law firm domains, and legal terminology can significantly reduce the manual workload while maintaining precision. However, technology should complement, not replace, the judgment of skilled reviewers.
Training and Consistency
Human expertise remains central to defensible privilege review. Review teams must be trained on the specific definitions and nuances of privilege applicable to the matter at hand. Differences between attorney-client privilege, work product protection, and other confidentiality doctrines can be subtle and context-dependent.
Creating detailed review guidelines and decision trees ensures that reviewers apply privilege criteria consistently. Calibration sessions, where reviewers discuss sample documents and align on coding approaches, can further reduce discrepancies. Periodic retraining throughout the project helps maintain consistency, particularly when teams are large or when review durations span several weeks or months.
Quality Control and Validation
Defensibility relies heavily on quality control and validation. Effective review processes incorporate multiple layers of oversight, including random sampling, targeted audits, and validation checks before production.
Attorney project managers should supervise reviewers or subject matter experts should perform second-level reviews of a statistically significant subset of documents coded as privileged or non-privileged. This not only verifies accuracy but also helps identify patterns of error that can be corrected proactively.
Additionally, robust documentation of QC results supports defensibility. When a challenge arises, being able to demonstrate that privilege decisions were reviewed, validated, and corrected as needed provides a strong foundation for defending the process.
Leveraging Review Support
For many organizations, managing large-scale privilege reviews internally can strain resources and budgets. Partnering with document review providers such as Baer Reed can offer scalable support tailored to the needs of complex eDiscovery projects.
By using seasoned attorneys who understand privilege review standards, law firms and corporate legal teams can maintain quality while controlling costs. Offshore teams can perform initial privilege screening, privilege log creation, and quality checks under the supervision of in-house counsel. This model not only enhances efficiency but also provides a consistent, documented process that contributes to overall defensibility.
Documentation and Reporting
Every defensible privilege review depends on accurate documentation. Detailed records of review criteria, training materials, reviewer instructions, and QC outcomes should be maintained throughout the engagement. Comprehensive privilege logs, including descriptions that justify privilege claims without disclosing protected content, are equally essential.
Consistent reporting throughout the review lifecycle also provides visibility to case teams and clients. Metrics on coding accuracy, QC pass rates, and error trends help ensure accountability and continuous improvement.
The Path Forward
Defensible privilege review is not achieved through technology alone or through manual diligence in isolation. It is the product of thoughtful process design, skilled human review, and disciplined quality assurance.
As data volumes grow and discovery demands intensify, organizations that invest in defensible privilege review frameworks position themselves to reduce risk, streamline workflows, and protect their clients’ most sensitive communications. Whether conducted in-house or with trusted partners, the focus should always remain on consistency, transparency, and the ability to demonstrate reasonable, documented efforts to preserve privilege.
In an environment where every decision in discovery can be scrutinized, defensibility is not just a safeguard, it is a competitive advantage.
Baer Reed supports law firms and corporate legal departments to design and execute defensible privilege review processes that combine technology, skilled attorney review, and meticulous quality control. To learn more about how our team can support your next eDiscovery matter, contact us 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.