Managing Privileged Communications During Document Review

Managing privileged communications is a key aspect of document review, ensuring that confidential legal exchanges remain protected from inadvertent disclosure. Whether dealing with attorney-client privilege or the work product doctrine, a structured approach helps mitigate risks and maintains compliance with legal obligations.

Best Practices for Managing Privileged Communications

When handling sensitive legal documents, it is essential to implement robust review processes that safeguard privileged communications. Below is a checklist of considerations as one works through preserving, logging, and reviewing such potentially privileged materials. 

1. Identification and Preservation

• Understand key privilege categories: Differentiate between attorney-client privilege, attorney work product, and other confidentiality designations.
• Expert review teams: Use experienced attorneys and document review teams to identify privileged materials and proper handling procedures.
• Specialized search results: After identifying potential keywords, your legal team can utilize an AI-powered eDiscovery tool to filter or flag potentially privileged documents early in the review process and ensure that the document review team uses extra caution/care when reviewing these potentially privileged documents.
• Establish clear protocols: Develop guidelines for handling documents that may contain privileged communications to prevent inadvertent disclosure.

2. Logging and Tracking

• Create a privilege log: Maintain a detailed record of all documents identified as privileged, including:
  • Date and time of communication
  • Sender and recipient(s)
  • Subject matter
  • Type of privilege asserted (e.g., attorney-client, work product)
• Ensure consistency in logging: Standardize entries across all cases to facilitate efficient tracking and retrieval.
• Monitor changes and updates: Regularly update logs to reflect new privilege designations or reclassification of documents as necessary.
• Be cautious that the document description in the privilege log does not inadvertently reveal privileged communications

3. Reviewing and Redacting

• Conduct secondary reviews:  Your attorney team should perform a secondary review of documents flagged as privileged to confirm classification.
• Apply redactions when necessary: If a document contains both privileged and non-privileged content, redact only the necessary portions while ensuring readability.
• Use secure review platforms: Employ technology that enables controlled access, redactions, and audit tracking to maintain document integrity.
• Verify privilege assertions before production: Double-check all designations before releasing documents to opposing counsel or regulators to prevent inadvertent waivers.

4. Managing Production and Potential Waivers

• Implement clawback agreements: Establish agreements that allow for the retrieval of privileged materials if disclosed inadvertently.
• Conduct quality control checks: Perform periodic audits to confirm compliance with privilege protocols.
• Prepare defensibility measures: Document decision-making processes in privilege assertions to support future challenges.
• Limit external sharing: Share privileged documents only with necessary parties, ensuring that protections such as common interest privilege are maintained.

By following a structured checklist, legal teams can build efficiencies into their document review processes, reducing the risk of privilege waiver while maintaining compliance with legal standards. Managing privileged communications effectively ensures that confidential legal discussions remain secure, protecting both client interests and the integrity of the legal process. For privilege review support, contact Baer Reed today.