Privilege review is the process of examining documents during e-discovery to determine whether they're protected from disclosure by attorney-client privilege, work product doctrine, or other legally recognized privileges. It's one of the most time-intensive phases of document review, requiring careful legal judgment to avoid inadvertent waiver.
What is privilege review?
Attorney-client privilege is one of the oldest recognized privileges in common law, dating back centuries in Anglo-American jurisprudence. It protects confidential communications between a client and their attorney made for the purpose of obtaining or providing legal advice. The work product doctrine, established in Hickman v. Taylor (1947), protects materials prepared by or for an attorney in anticipation of litigation. Together, these two protections form the foundation of privilege review in modern discovery.
FRCP Rule 26(b)(5)(A) requires parties who withhold otherwise discoverable information on the basis of privilege to expressly make the claim and describe the nature of the withheld documents in a manner that enables other parties to assess the claim. This typically takes the form of a privilege log. FRCP Rule 26(b)(5)(B) addresses what happens when privileged documents are inadvertently produced, providing a mechanism for clawback and return of such materials.
Federal Rule of Evidence 502(b) provides a safety net for inadvertent disclosures. An inadvertent production doesn't constitute a waiver if the producing party took reasonable steps to prevent disclosure and acted promptly to correct the error. Even so, privilege review mistakes can have severe consequences. Under FRE 502(a), disclosing one privileged document can waive privilege for all communications on the same subject matter.
"When a party withholds information otherwise discoverable under these rules by claiming that the information is privileged or subject to protection as trial-preparation material, the party shall ... describe the nature of the documents, communications, or tangible things not produced or disclosed."-- FRCP Rule 26(b)(5)(A)
Why privilege review matters
Privilege review carries significant cost and risk implications for legal teams:
- A 2020 Relativity study found that privilege review is the single most time-consuming phase of document review, often requiring senior attorney involvement rather than contract reviewers.
- Privilege review errors can result in waiver of privilege across an entire subject matter under FRE 502(a), not just for the specific document disclosed.
- Courts increasingly expect parties to use technology-assisted methods to identify potentially privileged documents, particularly in large-scale reviews.
- Privilege logs must be detailed enough to allow the opposing party and the court to assess each claim, making accurate tracking essential.
Privilege review in Hintyr
Hintyr provides built-in privilege marking through the file actions menu. Reviewers can mark documents as privileged with options for Attorney-Client, Work Product, or Both. Once marked, privileged documents are flagged throughout the platform and can be automatically excluded from productions.
Tags (also called folders) can be used to organize privileged documents into sets for privilege log generation and tracking. The AI agent can assist with identifying potentially privileged content by analyzing communication patterns, sender-recipient relationships, and document context.