- This article is about the grim realities of the document review coalface, and how best to protect privilege in light of those realities.
- Label your advice – as ‘PRIVILEGED’, ‘CONFIDENTIAL’ and ‘NOT FOR CIRCULATION’.
- Consider making mixed documents more legalistic – ensure the legal purpose is reflected in the introduction and legal analysis is weaved
into the body.
- Carefully consider whether a document should be in writing before putting pen to paper.
Privilege decisions are like sausages. You might feel better off not thinking too hard about how they’re made. But by confronting the grim realities of privilege at the document review coalface, in-house counsel can take simple steps to save themselves considerable expense and uncertainty.
Legal professional privilege is a complex and evolving area of law. The stakes of protecting your client’s devastatingly unhelpful factual admissions from disclosure could scarcely be higher. But the sheer number of documents produced by any modern organisation, combined with the Uniform Civil Procedure Rules’ extremely broad disclosure rules (UCPR 23.2(3)), mean that the resources devoted to deciding whether any particular document is privileged can be vanishingly small.
The initial decision about whether to flag a document as potentially privileged is typically made by a very junior solicitor. This person may well never have seen a trial before. They have, at best, a few minutes to review each document – sometimes, at 4am. This isn’t professional negligence. It’s simply the reality of mega-litigation, time-based costing, and the search for a small number of relevant and privileged documents in a vast sea of paperwork.