Recognizing Privileged Communication in Litigation
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.
- On January 3, 2024
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