A Lawyer’s Guide To Electronic Discovery: Potentially Privileged Searches

Introduction

By Bobby Malhotra, Esq

Privilege review is usually one of the most critical and sensitive aspects of the document review process. Inadvertent production of privileged documents can result in waiver of privilege for the produced materials. If these protections are waived, any privileged documents disclosed may be deemed waived for all purposes, not only as it relates to the current matter but also as a basis for new civil filings. While the Federal Rules of Civil Procedure do provide some structure to resolve the dispute if a party inadvertently produces privileged material–and notifies the adversary–a much safer strategy is to make sure that privileged documents are not produced in the first place.

What is “Privilege” from a Legal Perspective?

Privilege is a legal concept that protects from disclosing confidential communications made between attorney and their client for the purpose of obtaining or providing legal advice or services to the client. Basically, legal advice as communicated from attorney to client is exempt from production. The privilege concept applies to both communications an individual makes to their attorney and communications that a corporate client makes with outside and in-house counsel. Similar and related to the attorney-client privilege is the work-product doctrine, which protects disclosure documents and tangible materials prepared by or under the supervision of an attorney, in anticipation of litigation. This allows clients and counsel to share facts and opinions in order to set case strategy. Because such documents are likely to be extremely sensitive, it is crucial to make sure it is not inadvertently disclosed to adversaries.

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