Identifying privileged documents in discovery is a high-stakes task in which a lack of forethought can have profound, lasting consequences for the litigating organization and its counsel. Yet this task often is relegated to junior lawyers and approached in a tedious, mechanical fashion disconnected from the broader case strategy. Further, the advent of e-discovery and the rapid rise of associated costs have not eased the concerns of organizations wanting to ensure that privileged and private documents remain so. By beginning the privilege review process with the right strategy, leveraging technology to assist with the execution of that strategy and ensuring backup plans are in place, litigants can avoid costly mistakes and future disputes over waived privilege.

Coordinate Privilege with Case Strategy

Early preparation is the key to successfully marrying privilege review tactics with case strategy and, ultimately, protecting privilege in the most effective manner. Strategic considerations might include:

• Will you or your fellow in-house counsel need to testify about certain facts pertaining to contract negotiations?
• Should your organization turn over lawyer-created, internal regulatory compliance policies to demonstrate adequate controls to regulatory authorities?
• Is your organization best served by producing the factual findings of an internal investigation led by its attorneys?
• What litigation-based document preservation notices does your organization have in place, and will work product claims prior to the dates of those notices put your organization at risk for spoliation claims?
• Has your company engaged in sensitive communications with its attorneys about legal issues not known to others, and how can privilege claims over those communications be substantiated without tipping off the opposition to the existence of those issues?

None of these questions has a single right answer; the best response depends on your case strategy. But building a document review plan that complements your case strategy highlights a chicken-and-egg problem in the context of privilege review: How does one ascertain facts necessary to guide privilege review in a strategic manner without first reviewing the privileged documents?

The key to addressing this conundrum is to ascertain what key facts your litigation team can reasonably uncover before the review begins. Identifying your in-house and outside counsel is an important first step in this process, but it should not end there. Understanding how legal communications flow within the company is an equally important step in preparing for privilege review, and incorporating that review into your strategy. As collection commences, identify key litigation matters that are likely to be discussed. Has the company addressed other significant, but undisclosed, legal problems internally that are likely to show up in the collected documents?