The Federal Rules of Evidence were adopted by the Supreme Court on Nov. 20, 1972 and became effective on July 1, 1973. Since then there have been many changes and modifications to make privilege what it is today.
Though attorney-client privilege is the oldest privilege pertaining to confidential communication, it has not always existed in its current form. Originally, attorney-client communication was considered confidential because attorneys were thought to be “bound” by the oath and honor of their profession to protect the secrets of their clients. However, by the end of the eighteenth century, the court began to assess the need to formalize confidentiality between legal advisers and their clients. Thus, the modern attorney-client privilege was born.
Due to the analytical nature of privilege, knowing what the court will grant was, and continues to be, a malleable concept sometimes with unclear requirements and implications. Consequently, few issues arose more regularly in civil litigation than disputes over attorney-client privilege assertions.
In 1993, FRCP 26(b)(5) developed the following language: “When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must: i. Expressly make the claim; and ii. Describe the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Wolk v. Green, No. C06-5025 BZ (N.D. Cal. 2007). This language is commonly satisfied by submitting a privilege log and has been responsible for the adaption of privilege reviews as we know them today.
Using this Framework to Develop Your Privilege Logs
The first, and most tedious step, necessary to ensure compliance with the language in FRCP 269(b)(5) is document review. During this phase, every document in your possession should be reviewed and analyzed to determine what documents should be withheld from production to opposing counsel. More often than not, document reviewers are attorneys who recognize the legal and factual issues in a case and can make the necessary judgment calls as to privilege and responsiveness. Due to the lengthy nature of the initial document review, it can be helpful to automate your process. Being able to quickly code and/or flag potentially privileged documents will provide your experienced attorneys with the time and opportunity to simply review the potentially privileged documents, instead of reviewing all documents from the beginning.
After narrowing your documents, you can begin the process of reviewing the potentially privileged documents for relevance, responsiveness, and confidentiality. This part of the review process will be subject to greater scrutiny and a final determination will be made as to whether you should assert privilege status for any given document. Using Artificial Intelligence (AI) programs, like Text IQ, that utilize coding, scoring, and reasoning as well as “natural language” privilege explanations, can help prioritize documents that have a high likelihood of being privileged. Advanced AI programs help attorneys focus not only on protecting the most confidential information, but also quickly weed out those which will not qualify for privilege protection.
Following your determination on privilege, you will want to log all the documents for which you plan to assert privilege. Using AI to set up a functional, “live” privilege log is one of the best things a business can do. Being able to keep an automated running, searchable log of privilege documentation, key players, and more specific search functions will allow for timelier and more accurate log production in the future.
Redacting & Responding to Production
We’ve discussed in detail the necessity of thorough reviews and accurate logs, but another important aspect of the privilege discovery process is privilege redaction.
Where an entire document or communication evidences privilege, the entirety can be withheld, but where only part of the document or communication evidences privilege, only that privileged part should be redacted, and the remainder disclosed.
Redaction, when done manually, is essentially a “re-review” of your privileged documents with blacking out of any sensitive or confidential information. Automating the redaction process is a huge time saver and will prevent you from doing the same review work twice.
Once you have completed your review, log, and redactions you will need to submit to opposing counsel any responsive documents that you are not withholding, including those that have been redacted.
The Current State of Privilege Review
As technology advances, the courts are becoming more familiar, and possibly even appreciative, of automation in the privilege review process due to the convenience and efficiency it offers.
- Da Silva Moore v. Publicis Groupe & MSL Group, widely recognized as a landmark eDiscovery case, Judge Andrew Peck ruled that “computer-assisted review [or TAR- technology assisted review] and predictive coding is an acceptable way to search for relevant ESI in appropriate cases.”
- Rio Tinto PLC v. Vale S.A., Judge Peck ruled that it is black letter law that if the responding party wants to use T.A.R. for document production that the court will allow it.
Alongside these changes in the courts’ view of technology, the importance of accuracy, detail, and timeliness has increased as well. Considering the advent and evolution of technology and eDiscovery, there have been several recent cases in which plaintiffs and defendants alike have been reprimanded for failing to pay attention to these details in their logs.
- In Litton Systems, Inc. v. AT&T, after several log iterations and resubmissions by Litton, the judge held that the plaintiffs’ gross negligence and willful misconduct in failing to thoroughly provide privilege logs would likely warrant sanctions. Additionally, the failure to submit a complete privilege log waived the attorney-client privilege for the unlogged documents.
- In Navarro v. Procter & Gamble Co., Procter & Gamble (“P&G”) failed to produce a timely privilege log, and failed to adequately support its privilege assertions with evidence, opting instead for conclusory, unsworn assertions.
- RTC Industries, Inc. v. Fasteners for Retail, Inc. demonstrates the importance of careful planning and rigorous procedures when conducting a privilege review and drafting a privilege log. The court established that a log should be able to identify related or duplicate documents, include accurate author and recipient information. FFR’s initial privilege log had incorrect authors for over 250 entries, amounting to almost 25 percent of its log.
- Northrop Grumman Sys. Corp. v. United States is a great example of how privileged documents can inadvertently be produced.
The discovery process can be tedious and expensive, but it is a necessary part of litigation. Due to the ability for discovery to “make or break” a case, the court and opposing counsel will sift through any log or redacted documents submitted with a fine-tooth comb. Factors like timely production, complete and accurate document descriptions, and evidence-based privilege assertions must be taken seriously to avoid sanctions or waiver of privilege.
Utilizing AI for document review, privilege review, privilege log development and privilege redaction is vital. AI programs are especially adept at discerning the context, relationships, and hidden meanings within unstructured data to accurately detect when privilege may be present, set up logs, and adequately prepare your company for discovery production.
If you are interested in learning more about AI for privilege review , please contact Text IQ.