Privilege review is one of the most important steps an attorney takes to keep privileged information from being disclosed during the discovery process. The attorney client privilege protects the confidentiality of communications between an attorney and client, and it is imperative to understand the importance of a comprehensive review.
Privilege Review Failures Are Costly
It is important to draft a detailed project memo that provides instructions for privilege review. This document will not only provide instructions to the privilege review team, it will also serve as a record of the steps taken to ensure that the discovery requests were handled in an appropriate manner. Producing a privileged or confidential document, failing to meet production deadlines, or failing to produce documents requested can result in sanctions or other penalties. Any one of these failures can have a negative impact on a case.
Factors Determining Attorney Client Privilege
There are a number of questions that can help guide a reviewer towards determining whether documents, correspondence, or emails are considered privileged including:
- Is the communication between the attorney and/or an agent and the client?
- Was, and is, the communication intended to be confidential?
- Was the communication seeking legal advice?
- Has there been waiver of the privilege?
The following are common types of privileged/protected documents (note that each specific document should also be reviewed individually to determine if it is privileged):
- Emails and other communications from attorneys
- Emails and other communications addressed to attorneys
- Drafts of contracts or other agreements (in particular those that contain notes, changes, or comments from attorneys)
- Minutes or notes of meetings conducted by attorneys
- Other documents where the attorney is the author or the provision of legal advice is mentioned
Privilege Log
The privilege review process will often result in a privilege log, which is a list of documents and evidential communications between attorney and client that are subject to the attorney client privilege and should be withheld. It will often also list documents protected by the work product doctrine.
Discovery Receipt and Response
In general, once your office receives a request for discovery, you have a limited number of days to respond. When providing a response, remember that inadvertent production of documents discloses the contents of the documents to the other side and could result in a waiver of privilege for all documents with the same subject matter.
Using an outside privilege review provider can result in significant benefits, including cost savings, time to focus on preparation of a case, and the creation of a well-developed privilege log, regardless of the size of your organization. If you are considering the benefits of outsourcing your privilege review or would like to learn more, contact Baer Reed offshore legal services and find out how we can help.
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.