Are Attorneys Properly Prepared for Privilege Review?

Are Attorneys Properly Prepared for Privilege Review?

The eighth in a series of articles about how to reduce litigation costs while getting better results.  The following is adapted from Chapter III.D of Bensen & Myers on Litigation Management.

Privilege Review is the stage at which all of the documents initially tagged as "Privileged" during the document review will be subject to closer scrutiny and at which a final determination is made as to whether or not the document is subject to privileged status. 

Federal Rule of Civil Procedure 26(b) excludes "privileged matter" from the scope of discovery.  "Privileged matter" generally includes information protected by the attorney client privilege or the work product doctrine, but many jurisdictions differ in the scope of protection they afford and some jurisdictions have expanded the scope of privileged matter to include other categories of privileged information, such as the husband/wife privilege.  Privileged matter can take the form of a written or oral communication and, likewise, a privilege assertion can be made with respect to written or oral information. 

In order for privileged material to be properly withheld from production in a litigation, however, it must be listed on a Privilege Log.  A Privilege Log is a document containing the written justification for withholding allegedly privileged information.  All courts require parties withholding materials from production to provide a written justification in the form of a privilege log.  Each document or oral communication, as the case may be, withheld from production is listed separately on the privilege log and is identified and described with objective information that will not reveal the substance of the privileged communication, such as the names of the authors and recipients, the date, type of document, a very basic description of the subject matter of the privileged material and the grounds upon which privilege is asserted.  

All too often, the privilege review is put on the backburner until an adversary demands a privilege log.  Sometimes, that demand is made after opposing counsel questions a company witness and learns that certain documents exist but were not produced because Outside Counsel considered them immune from discovery on the grounds of work product or privilege.  When this happens, Outside Counsel may react to its angry, demanding and seemingly unreasonable adversary by gathering together a team of associates to create a privilege log on an expedited basis. 

Sometimes, this review will be the first encounter that the associates have with the case and the first time they have grappled with privilege issues since law school, yet they are expected to expeditiously examine documents concerning a subject matter they are unfamiliar with, containing names that they have never seen before, and make important decisions regarding privilege.  Even worse, they are asked to decipher internal and external company relationships and learn the facts of the case as they proceed document by document.  This expedited review inevitably culminates in a poor privilege log weak in foundation.

A more thoughtful approach to the privilege review will yield not only an efficient, streamlined review, but an ultimate product - the privilege log - much more likely to withstand scrutiny from even the most demanding adversary.  In this respect, there are two key points to keep in mind:  

1.   The privilege review should be conducted in parallel with the document review.  The time spent conducting the review will be shorter if conducted during the document review stage when Outside Counsel's resources are focused on document review, the names, dates and subject matters of the litigation are fresh in the minds of the document reviewers and associates are committed to work on the matter.     

2.   Specific individuals should be appointed as Privilege Reviewers.  Because a painstakingly thorough analysis must be made of each document before its privileged status can be determined and the reviewers' efficiency improves as their familiarity with names, dates and subject matter increases, Outside Counsel should appoint a small number of associates to be the Privilege Reviewers who will definitively determine the privileged status of each document while the document review team acts as the "initial privilege reviewers."

To make this work, during the course of the document review, the document review team should code any document that (based on a preliminary review) appears to be "Privileged."  The Privilege Reviewers will then thoroughly review these documents for a final determination.  Starting with a list of names of individuals identified on discovery documents and an employee interview list, the Privilege Reviewers will create and further develop a single list of all names appearing on privileged documents including each person's title, job and place of employment (while also updating the general list of names accordingly).  When the privilege log is created and served on an adversary, the list will be annexed to the log to help establish the showing necessary to justify the non-production of these documents. 

To expedite the process and help ensure quality results, a litigation team member should review applicable law concerning privilege and summarize it in the privilege review instructions document, which will serve as a reference for the Privilege Reviewers to answer privilege questions quickly as they arise during the review process.  A team member should also decide on a proper format for the privilege log at the outset of the privilege review so that the log meets the applicable rules. 

The tools needed to effectively manage the privilege review process along with concrete methodologies and tools to address case evaluation, budgeting, the decision to bring suit, whether and when to settle, staffing issues, document collection, review and production, trial preparation and other facets of the litigation process are provided in Bensen & Myers on Litigation Management.

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