Understanding the Importance of Attorney Client Privilege Review
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.
- On October 30, 2017
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