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ANALYSIS: Privilege Review Is More Than Meets the Eye

Sept. 27, 2021, 9:00 AM

So you’re settling into your new job as a litigation associate, and want to knock first impressions out of the park. You may soon find yourself staffed on a document review project—and where there’s a doc review, there’s usually a privilege review not far behind. Before too long, you may even find yourself leading a privilege review.

Although not always viewed as the most exciting assignment, privilege review can involve complex legal analysis and have important ramifications for the case. To make yourself stand out, be prepared as you head into your first privilege review project. Here’s how.

1. Brush up on the basics.

The attorney-client privilege and the attorney work product doctrine can be deceptively complex areas of the law. While often spoken of in the same breath, the two protections serve different purposes, and while they may overlap, they often apply to different documents. Spend time brushing up on the substantive law surrounding the two protections before you dive into deciding whether documents can be withheld based on attorney-client privilege, the work product doctrine or other relevant privilege.

2. Know the players—and their roles.

A lot of decisions made during a privilege review will turn on who wrote a document, and who else besides the author saw the document. You should quickly familiarize yourself with the names of the in-house counsel and outside counsel who were involved in the subject of the case. For in-house counsel, carefully consider whether any advice they give was legal or business in nature. If you discover new attorneys during the course of your review (which you will), add them to a master privilege list. Determine whether anyone else frequently seen on the documents specifically breaks the privilege (outside consultants, for example), or specifically creates protected material (someone assisting in creating work product at the direction of an attorney, for example), and remember and record those names and situations as well. Make sure attorney names are on a list of keywords for automatic highlighting by your document review tool.

3. Do it in stages.

Unless the number of documents is very small, an effective privilege review usually cannot be completed in one pass. A first-level privilege review often relies heavily on keywords and a quick review of the face of the document. It is often done in tandem with first-level document review. A second-level privilege review is more focused, and usually consists of a more scrutinizing look at a subset of documents, including those tagged possibly privileged at the first level, and those that hit on certain keywords, including names of attorneys. Some of the toughest calls may need additional layers of review, and may require more complex legal analysis and strategic decision-making.

4. Get the whole picture.

What you can read on the face of a document is only part of the story. A document’s “family” (i.e., an email and all of its attachments) can be an important part of privilege analysis, as can metadata. Make sure you have seen all of the information about a document before you make a final privilege call.

5. Be consistent.

Make sure you keep your privilege calls consistent; this will lead to an airtight privilege log that is harder for opposing counsel to challenge. In a large review, for example, you might find similar documents across different batches of documents. If they are about the same topic, and involve correspondence between the same people, it is likely that the documents will merit the same privilege call. This is especially important when you are redacting a portion of a document that is partially privileged. When you make decisions about tricky legal issues, documents, or redactions, memorialize those decisions for yourself and the review team. That way, when you face that issue again later in the review, you can quickly refresh your recollection on exactly how you decided to move forward, so you can ensure consistency among fellow reviewers.

6. Keep your eye on the log.

When making tagging decisions, remember that at the end of a privilege review, a privilege log will need to be drafted and produced to the other side. You are likely to be included in drafting that log, so keep privilege log requirements in mind as you code documents. You can even customize the review coding panel to make drafting privilege log entries easier. For example, for each document entry on a log, you will need to identify the attorney that creates the privilege, and include a description of the document that justifies the decision to withhold the document. Including these details in your coding will make the privilege log process more efficient down the road.

Bloomberg Law subscribers can find additional resources geared towards summer and junior associates, including practical guidance, workflow tools, surveys, and more on In Focus: Core Skills – Litigation and In Focus: Lawyer Development.

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