Privilege Logging & Protection Part 2: Mastering Other Considerations in Privilege Logging

Creating a privilege log requires more than simply identifying documents that require protection. It begins with a nuanced privilege review process requiring careful judgment, strategic decisions, and a deep understanding of legal and procedural complexities.

While the first article in our series on privilege basics explored foundational concepts like attorney-client privilege, the work product doctrine, and privilege waiver, there’s much more to consider prior to creating a comprehensive and defensible privilege log.

In this article, we’ll discuss how determining whether a document is protected involves grappling with challenges like distinguishing legal advice from business advice, handling partially privileged documents, and navigating Federal Rule of Evidence (FRE) 502.

Is it legal advice or business advice?

One of the most common challenges in determining privilege arises when attorneys wear multiple hats, serving as both legal and business advisors. This dual role often blurs the line between legal advice, which is protected by privilege, and business advice, which is not.

The key question is whether the primary purpose of the communication was to seek or provide legal advice. If the communication contains both legal and business advice but the legal aspect predominates, the entire communication may be withheld. However, if the communication is partially business-related, it will not be protected as wholly privileged but could be redacted for privilege in part.

Consider an in-house attorney advising on contract negotiations. If their advice focuses on legal implications, the communication is likely privileged. Conversely, if the attorney is discussing business-related issues such as pricing strategies or operational logistics, then privilege may not apply.

Here, the key is to carefully consider the purpose of the communication and substantiate any claims of privilege on the log.

How should you manage partially privileged documents?

Not all documents are entirely privileged—some contain a mix of both privileged and non-privileged content. Handling partially privileged documents requires a meticulous approach to isolate protected content while disclosing relevant, nonprivileged information.

In cases where a document includes both privileged and nonprivileged content, producing the document with privilege content redacted  is often the solution. For example, if an employee forwards a customer email to the in-house counsel seeking legal advice, that portion of the communication may be privileged, but the underlying customer email is not. Redacting only the privileged portion allows for partial disclosure without producing privileged content and risking waiver.

For partially privileged documents, the privilege log description is limited to the redacted portion of the document. The description should explain the nature of the redacted privileged content.

Transparency in privilege logging helps prevent disputes and ensures compliance with legal and ethical standards.

What about Federal Rule of Evidence 502?

FRE 502 provides a framework for managing the risks of inadvertent disclosure of privilege content, particularly in large-scale eDiscovery projects involving a plethora of documents. This rule protects against privilege waivers if you meet certain conditions.

First, the disclosure must be inadvertent. To claim the protection of FRE 502, you must show that your disclosure of privileged materials was unintentional.

Second, you must take reasonable steps to prevent the disclosure of privileged information. Reasonable steps can include the following:

• Application of privilege filters within the eDiscovery platform.
• Implementing clear review protocols and training for reviewers on privilege identification.
• A robust quality assurance process to ensure privileged documents are correctly identified and withheld.

Third, you must act fast. If you discover an inadvertent disclosure, you must inform the receiving party immediately about the inadvertent disclosure and assert privilege over the document. You must also ask the receiving party to return or destroy the disclosed material. If the receiving party disputes the claim of privilege, you can file a motion seeking a protective order from the court.

To reduce the risk of inadvertent disclosures, ensure that your legal team understands how to apply FRE 502 protections to mitigate risks. You should consider establishing a Clawback Agreement, which states that inadvertent disclosures do not constitute a waiver of privilege and provide a mechanism to retrieve such materials without penalty. You can formalize a nonwaiver agreement under Rule 502(d), which ensures that privilege is not waived in any jurisdiction, even if you inadvertently disclose privileged materials during litigation.

The next steps for exceling with a Consilio expert and AI Privilege solutions

Whether distinguishing legal advice from business advice, overseeing partially privileged documents, or navigating FRE 502 protections, these considerations are essential for identifying privilege and creating accurate and defensible privilege logs.

But no software alone can sufficiently prepare or manage your privilege logging needs.

At Consilio, we recognize that privilege logging is a demanding process that requires expertise and precision. Our experienced advisors are here to help you navigate these challenges with confidence.

To learn more about privilege logs, check out our webinar. And don’t miss the final installment in our privilege basics series, where we’ll explore ways to continue elevating your privilege log process.

Consilio offers potent AI solutions for your privilege needs. To analyze documents and detect privilege, use AI PrivDetect, which analyzes the context and content of documents, seamlessly detecting privilege.

Additionally, check out the new AI tool from Consilio: AI PrivGen, which provides automated privilege log description creation, saving your team the time and hassle of privilege  description generation. PrivGen tackles the most tedious and time-consuming tasks of privilege logging: drafting privilege log descriptions. This automated solution will cut back your time spent on document review by hours, if not days. It is also expert-guided and continuously improving.

Ready to tackle privilege logging with Consilio’s new AI PrivGen tool?

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Stay tuned for the final installment in our privilege basics series, where we’ll delve into redactions.