Privilege review is a critical step in the document production process. Inadvertently producing privileged documents can waive legal protections and harm a client's case.
Types of Privilege
Attorney-Client Privilege
- Communications between attorney and client
- Made for the purpose of obtaining legal advice
- Intended to be confidential
- Not shared with third parties
Work Product Doctrine
- Materials prepared in anticipation of litigation
- Attorney mental impressions, conclusions, opinions
- Investigation reports and analysis
- Draft pleadings and strategy documents
Other Protections
- Joint defense privilege
- Common interest privilege
- Mediation privilege
- Tax practitioner privilege (limited)
The Review Process
1. First-Level Review
- Reviewers examine documents for responsiveness and privilege
- Apply coding decisions (responsive, privileged, not responsive)
- Flag questionable documents for senior review
- Technology-assisted review (TAR) may aid prioritization
2. Quality Control Review
- Senior attorneys sample first-level decisions
- Review all privilege calls for consistency
- Resolve disputes and edge cases
3. Privilege Log Preparation
- Create detailed log of withheld documents
- Include: date, author, recipients, subject matter, privilege basis
- Comply with applicable rules (FRCP 26(b)(5))
4. Final Quality Check
- Verify no privileged documents in production set
- Cross-check privilege log against withheld documents
- Senior partner sign-off
Technology in Privilege Review
Technology-Assisted Review (TAR)
- Machine learning identifies potentially privileged documents
- Reduces manual review volume by 60-80%
- Prioritizes high-risk documents for human review
Privilege Detection Rules
- Automated scanning for attorney names
- Email domain matching (law firm domains)
- Keyword-based identification of legal communications
Costs and Challenges
Privilege review is often the most expensive part of discovery:
- Large-scale reviews can cost millions of dollars
- Requires experienced legal professionals
- Time pressure from court-imposed deadlines
- Risk of waiver creates pressure for thoroughness
Clawback Agreements
Under Federal Rule of Evidence 502(d), parties can agree that inadvertent production doesn't waive privilege, reducing the risk and cost of review.