When performing a priv review, it is a common misconception that if counsel is “cc’d” on an email, that in and of itself makes the document privileged. Not so.
There must be a clear indication of legal advice contained in the document to allow the privilege waiver of production to attach. It is not always clear where the legal nature of a document exists. Basic transmittal emails stating “see the attached” that are identified in the privilege search term hits requires one to look at the attachments to that email.
Often times, depending on the nature of the client, legal advice can be deep into a document such as a legal sign off on an intellectual property matter with comments; or in a spreadsheet cell that might be used to track certain aspects of a business from a legal perspective.
This points to the benefit of having a review team that is familiar with the client and their documents, particularly those clients who are regular litigants, as the institutional knowledge gained matter over matter provides for consistency of the privilege review and minimizes the risk of inadvertent production of privilege documents.
The reviewers know where to look in documents and find the privilege content when it is less than obvious.
But only having institutional knowledge is not enough. Priv review teams are professional review teams with specialized protocols and methods for performing priv reviews in a manner that helps identify, pinpoint, and quality-control the review such that it can be relied on with accuracy and confidence.
Priv reviews also typically include the creation of a legal privilege log that identifies the specific documents and emails that are legally withheld for privilege reasons along with additional information such as the privilege type (e.g., attorney-client privilege or attorney work-product privilege), the date of the document, author information and other key fields.
Ultimately all of those factors mean that hiring the right team to perform legal privilege review is critical to ensuring this simple, yet common mistake does not occur during a priv review.