What does privilege mean in document review?

Privilege, in a document review context, is a legal protection that allows a party to withhold an otherwise relevant document from production. Reviewers are usually asked to identify privileged material, code it, and capture enough detail for counsel to assert the claim properly.

Categories reviewers see most often

• Solicitor-client privilege (attorney-client privilege in the United States): confidential communications between a lawyer and client for the purpose of seeking or giving legal advice.

• Litigation privilege (broadly comparable to work product protection in the US): material created for the purpose of litigation, including counsel's notes and investigative work.

• Common interest privilege: privileged material shared with a party holding a shared legal interest, without that sharing being treated as a waiver.

• Settlement or "without prejudice" communications, protected in many jurisdictions.

Terminology and scope differ by jurisdiction, so a coding scheme should follow the law governing the matter rather than a generic template.

What review teams actually do with it

Privilege coding is rarely a simple yes or no. A single email chain can be partly privileged, which calls for redaction rather than withholding the whole document. Material pulled aside also needs supporting detail - author, recipients, date, and the basis for the claim - to populate a privilege log. Because an inadvertent production can put a claim at risk, privilege calls are typically confirmed by a lawyer rather than left to a first-pass reviewer or a tool.

This is general information about review practice, not legal advice on any particular matter.

Related reading: Privilege Review in the Age of Generative AI covers how teams protect privilege while moving faster.

Claira is an AI eDiscovery platform for document review - you can book a demo to see how it fits into an existing review workflow.