- 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.
The final decision about whether a document is privileged is made by the judge, sometimes as an evidentiary ruling on the fly. In line-ball cases, privilege is an evaluative judgment of the kind which appeal courts are reluctant to interfere (Curless v Shell International Ltd  EWCA Civ 1710  (Etherton MR, Lewison and Bean LJJ). At its worst, privilege decisions become less a refined analysis of the caselaw and more a snap decision based on gut instinct.
This means that, when preparing privileged documents, we need to make it as easy as possible for these busy decision-makers to see our real purpose – and think about how we can nudge them in the right direction. Better to spend a very small amount of resources putting our documents’ status beyond doubt, than take an ambiguous privilege issue all the way to the High Court and back. There are some very simple ways you might do this.
1. Label, label, label
Legal professional privilege is about substance rather than form. As a matter of law, a mere label cannot make a difference as to whether or not a document is privileged (Carter Holt Harvey Wood Products Australia Pty Ltd v Auspine Ltd  VSCA 59  (Maxwell P)).
In practice of course it can. Clear labels change people’s behaviour, and make it more likely that privilege is flagged and preserved.
First, a label can help the decision-maker ‘issue spot’ that privilege should be considered, and prime them to see a privileged purpose as they examine the document. In particular, eDiscovery software often highlights particular keywords for the solicitor’s review. Clearly using the words ‘PRIVILEGED’ and ‘CONFIDENTIAL’ will make your document light up like a Christmas tree, and make its privileged status easy to spot. A list of permitted recipients – even if they are defined by reference to job titles or a class – will make it clearer that the document was intended to be confidential and nudge the decision-maker towards seeing its privileged status.
Second, a label can help recipients think twice before forwarding documents. For a junior solicitor, there is nothing more depressing than seeing a perfectly privileged email that loses its status when it’s sent on to a wide distribution list. Put the issue beyond doubt by saying the email is ‘NOT FOR CIRCULATION’ – and explicitly identifying the client group to whom it can be circulated.
2. Make the document more legalistic
As a matter of law, a document will only be privileged if it was for the dominant purpose of providing the client with legal advice, or with professional legal services relating to actual or anticipated proceedings (Esso Australia Resources v Commissioner of Taxation  HCA 67  (Gleeson CJ, Gaudron and Gummow JJ); Evidence Act 1995 (NSW), ss 118 and 119). Very little in life is done with only one purpose. For example, an internal investigation into wrongdoing at an organisation typically has multiple purposes – to advise the organisation of its legal position, but also to discover what happened and prevent it from happening again (Waugh v British Railways Board  AC 521, 531 (Lord Wilberforce)).
[W]hen preparing privileged documents, we need to make it as easy as possible for these busy decision-makers to see our real purpose – and think about how we can nudge decision-makers in the right direction. Better to spend a very small amount of resources putting our documents’ status beyond doubt, than take an ambiguous privilege issue all the way to the High Court and back.
Some lawyers are understandably afraid of the vagaries of the dominant purpose test. To minimise risk, they advise splitting documents with mixed purposes into multiple documents – one non-privileged version setting out what happened, and another privileged version explaining their legal advice in that factual context.
This has always struck me as an extremely bad idea. It’s unlikely that your purely legal advice discovered a game-changing High Court case your opponent couldn’t also find in their own searches. What your opponent is much more interested in is your client’s devastating factual admissions, which you have neatly summarised in an unprivileged document, paginated for easy reference in your opponent’s cross-examination.
The better solution is to make your mixed document more clearly legal in purpose.
First, begin by stating that the purpose of the document is to seek or provide legal advice – in the case of litigation privilege, by explaining a particular background dispute and why you anticipate proceedings may arise.
Second, set out the questions by reference to a legal context and the legal test by reference to the authorities, and interleaf the factual discussion with the elements of the test and their application. Frame the summary, headings and conclusion by reference to issues of law and prospects on each.
Third, resist the temptation to have an easily separated ‘Facts’ or ‘Background’ section. This may be left unredacted in a privilege review, or copied into an unprivileged document by an unwary reader.
Where there is an investigation, ensure that it is led by lawyers. The final privileged report should be produced by a lawyer and only circulated to the client group, not treated as a ‘lessons learned’ document for the whole organisation. Making the document scream ‘legal’ means it will scream ‘privileged’ too.
3. Be sure this document should be in writing before putting pen to paper
Any large organisation produces a lot of electronic documents. All of these documents are potentially subject to discovery. But a conversation that isn’t in writing – whether privileged or not – will never be subject to the process.
True, participants in an oral conversation can be subpoenaed. But counsel are loathe to call opposing witnesses blind without documents to pin them down. An awful lot of the time, a conversation that isn’t in writing might as well never have happened in the first place.
Today, many of our most intimate conversations are conducted electronically – for example, over the family WhatsApp. Whole romances are born and die over Hinge and Facebook Messenger. Texting someone feels less formal than sitting down and writing them an actual physical letter.
But because multiple copies of the communication are created, in stable and easily searchable form, electronic communication is even more permanent and even more discoverable than formal correspondence. By contrast, an oral conversation may not even need to rely on privilege, because it may never be disclosable in the first place.
Of course, there are countervailing considerations. A written document can serve as a clear record of what was said and why, which you can refer to again and again and share with others, rather than conveying legal advice by a game of Telephone. But for truly sensitive discussions, a clear and easily shareable record is precisely what you should avoid. Be sure this document should be in writing before putting pen to paper.
In short, remember:
- Label your advice – as ‘PRIVILEGED’, ‘CONFIDENTIAL’ and ‘NOT FOR CIRCULATION’.
- Make the document more legalistic – ensure its legal purpose is reflected in the introduction and legal analysis is weaved into its body.
- Be sure this document should be in writing before putting pen to paper.
Remember the junior solicitors struggling through your documents at 4am. Make it easy for them by putting your documents’ privileged status beyond doubt.