Privilege Logging & Protection Part 1: Nailing Privilege Basics to Improve Privilege Logs

Protecting privilege is a cornerstone of effective legal representation and a critical component of the eDiscovery process. Privilege safeguards the confidentiality of communications and materials between a client and their attorney made for the purpose of obtaining legal advice, ensuring that clients can engage with their counsel without fear of exposure.

Preserving these protections requires vigilance and profound knowledge of privilege rules. Inaccurate classification, inadvertent disclosure, or insufficient documentation can lead to privilege waivers, which can severely undermine a case’s strategy and outcomes. One crucial way that attorneys protect privilege is by understanding privilege log requirements prior to preparing a privilege log to be produced in legal proceedings.

In this, the first of our three-part series on creating a privilege log, we’ll cover the basics of privilege logs, common types of privilege, and privilege waiver.

What is a privilege log?

A privilege log is a document that identifies materials withheld from production during discovery on the grounds of legal privilege. It serves as a detailed record of communications, documents, or other information protected by privilege to inform opposing counsel and the court about the nature of the withheld materials without revealing their substantive content.

Typically, a privilege log includes key details such as these:

• Date: The date when the document was created, or the communication occurred.
• Author(s): The individual(s) responsible for creating the document or sending the communication.
• Recipient(s): The individual(s) who received the document or communication.
• Privilege type: The privilege being asserted (e.g., attorney-client privilege or work product).
• Legal Source: The actor designated as the source of privilege.
• Custodian: Source of information data was collected from.
• Description: A brief, nonrevealing summary of the withheld document or communication’s content sufficient to assist opposing counsel and the court with assessing the privilege assertion.

The above list is not fully inclusive of all values that could be contemplated on a standard privilege log.  The ESI protocol should be relied upon to identify the list of all information required on the privilege log.

A well-prepared privilege log strikes a balance between providing enough information to justify the privilege claim while safeguarding the confidentiality of the protected material.

Creating an effective privilege log requires sharp judgment, meticulous attention to detail, and a deep understanding of privilege. As we’ll discuss later in this article, the stakes are high when preparing a privilege log. Missteps can result in privilege being inadvertently waived, they can expose sensitive information and even weaken legal strategies.

The key types of privilege

Privilege is a cornerstone of the legal system, designed to protect certain communications and materials from disclosure during legal proceedings. The various types of privilege, attorney-client privilege, the work product doctrine, and the common interest doctrine, among others, form a framework that supports confidentiality, collaboration, and the integrity of the legal process. Understanding their nuances is vital to accurately identify and protect privileged information.

Attorney-client privilege

The attorney-client privilege protects communications between clients and their attorneys when the communication is intended to seek or provide legal advice. This privilege gives clients confidence that they can share sensitive details openly with their counsel without fear of exposure to other parties.

The scope of the attorney-client privilege is broad, but it is not absolute. For instance, the privilege applies only to confidential communications made for the purpose of obtaining legal advice. Attorneys cannot share any information that a client discloses in protected conversations without the client’s consent.

Work product doctrine

The work product doctrine takes confidentiality a step further by protecting materials prepared by attorneys—or at their direction—in anticipation of litigation. Unlike the attorney-client privilege, which focuses on communications, the work product doctrine encompasses tangible materials such as notes, memoranda, and legal strategies, as related to specific litigation or the potential of litigation.

This doctrine preserves the integrity of the adversarial legal process. Attorneys must have the freedom to prepare their cases without the risk of exposing their strategies to opposing parties. Understanding and applying this protection ensures that sensitive legal strategies remain secure.

Common interest doctrine

The common interest doctrine allows parties with aligned legal interests to share privileged information without waiving the attorney-client privilege or work product protections. This doctrine is particularly relevant in scenarios involving co-defendants in litigation or organizations collaborating on joint ventures.

For example, two co-defendants may share a joint defense strategy under the guidance of shared counsel. This collaboration is protected under the common interest doctrine, ensuring confidentiality while enabling effective representation.

However, the doctrine has its limits, and its application can sometimes blur the lines between collaboration and waiver. Legal teams must carefully navigate these gray areas to avoid waiving privilege.

Understanding which parties are third parties and which share a common interest is essential for determining privilege before initiating the privilege log process, particularly under the common interest doctrine.

Privilege waiver: The risk of losing protection

Privilege waiver is the inadvertent or intentional loss of legal protections over certain communications or documents. When privilege is waived, sensitive materials can become accessible to opposing parties, potentially jeopardizing legal strategies and outcomes.

Privilege protection can be inadvertently waived when privileged documents are shared during discovery without proper safeguards. Waiver can also happen if privileged communications are shared with individuals outside the attorney-client relationship.

Preventing privilege waiver requires rigorous attention to detail, clear communication protocols, and a thorough understanding of privilege rules.

Mastering privilege basics the right way with AI PrivGen & legal experts

Mastering the basic foundational elements of privilege, like understanding attorney-client privilege, the work product doctrine, the common interest doctrine, and privilege waiver—is the first step toward constructing an effective privilege log.

While building a privilege log may seem like a daunting process, luckily, you don’t have to face it alone. At Consilio, our seasoned legal advisors, are here to help you tackle this complex process with confidence and precision. Our advisors specialize in privilege protection and logging and are here to help you with all aspects of this oftentimes lengthy and laborious process.

We’ve also recently released a powerful AI solution called AI PrivGen, which autogenerates a privilege description for each document on the privilege log. While you’ll need a reviewer to validate and refine the descriptions to align with your protocol, our AI PrivGen tool streamlines the most time-consuming part of the process – eliminating the need to draft descriptions from scratch.

Curious to learn more about Consilio’s new AI PrivGen tool?

Stay tuned for the next article in our privilege basics series, where we’ll take a deeper dive into managing privilege logs.