Last week, I had the fortune to co-host the Legal Geeks podcast with Josh Gilliland, talking about attorney-client privilege. In the conversation, I made the point that protecting attorney-client privilege is a matter of hard work, vigilance, and due diligence.
As we discussed, while it is possible for parties to agree to a limitation of waiver under Rule 502, it is still very easy to accidentally waive the right. Whether through carelessness, simple oversight, or outright negligence, any mistake can put your privileged communications into opposing counsel’s hands. And even if you can claw that information back, your opponents can’t unsee that information- you can be sure they will look for ways to find the same information through alternative routes.
Fortunately, Nextpoint has made attorney-client privilege review simple. As we’ve reviewed in countless real-life examples from caselaw, most waivers happen when lawyers fail to check that privileged information isn’t being included in their production to opposing counsel. We’ve introduced our patent-pending Privilege Protect technology to stop this mistake.
Using advanced computer algorithms, Privilege Protect will check your production database to find documents that are similar to documents that have been marked as privileged and removed from the collection. That way, you find not only privileged documents that may be mistakenly produced, but copies of privileged content, drafts of privileged emails that may be in your collection (this oversight destroyed a case for Google), or other privileged content reviewers simply missed. Let’s take a look at how this works:
We have more detail on this process on our support site.
Once you have reviewed your documents and are ready to produce to an outside party, simply select the transfer option in Discovery Cloud. (You’ll notice the red and black Privilege Protect logo next to the “Transfer” tab.)
After setting up your loadfile for transfer, you will have the option to run Nextpoint’s attorney-client privilege detection technology. You can run and then download a report .
On this report, you can see documents that are similar to privileged documents in your collection, along with a score showing how similar it is to any documents that have been marked privileged, on a scale of 1 to 100. You can then review the items with the highest scores to see if they are in fact privileged documents which should be eliminated from the collection.
A lot of times, you will find that many documents are highly similar to privileged documents, but are not in fact privileged. This is because many documents share the same disclaimers, signature files, and other common features, but the actual content is not a privileged communication. You can train Privilege Protect to ignore these common items the next time you run the review. You can now remove attorney-client work product from the data set and re-run Privilege Protect.
Once you are satisfied that all attorney-client work product has been removed from your collection, you can set up the final review and approval for the transfer. Every lawyer knows to review their production to opposing counsel, but given the number of mistakes that happen in this process, it is obvious that a robust and computer-aided review process is needed. That’s what Privilege Protect provides.
You can also download Nextpoint’s free, easy-to-use Best Practices Guide for Protecting Attorney-Client Privilege to help you defend your right of attorney-client privilege, or talk to us today about signing up for the most robust and affordable review platform currently in the industry.