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?
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
