Privilege review is the discrete review pass — embedded in eDiscovery workflow — that identifies documents protected by attorney-client privilege or work-product doctrine before producing documents to opposing counsel or regulators. Producing a privileged document by mistake is one of the most expensive errors an eDiscovery program can make: depending on jurisdiction, it can waive privilege over an entire subject matter, not just the produced document.
What’s actually privileged
Two main categories, often confused:
- Attorney-client privilege. Protects confidential communications between an attorney and client made for the purpose of obtaining legal advice. Both directions — attorney advising, client requesting advice. Held by the client; can be waived by the client.
- Work product doctrine. Protects materials prepared by or for an attorney in anticipation of litigation. Includes attorney mental impressions, strategy notes, witness interviews. Broader than privilege but with narrower protections (qualified, not absolute).
Common misconceptions:
- In-house attorney communications are privileged only when made for legal advice purposes — not when made for business advice. The same in-house counsel writing about strategy may be privileged; about pricing may not.
- Just including an attorney on the cc line doesn’t create privilege — the communication has to be made for legal-advice purposes, not just informational.
- Privilege can be waived inadvertently — by sharing with third parties, by producing in another matter, or by using as a sword and shield.
The privilege review workflow
In a typical eDiscovery matter:
- Initial responsiveness review identifies documents responsive to the discovery request
- Privilege review flags documents that are responsive but withheld for privilege
- Privilege log generation documents each withheld item — date, author, recipients, subject matter, basis for privilege — without revealing the protected substance
- Production delivers responsive non-privileged documents to opposing counsel
- Privilege log delivery accompanies the production, listing what was withheld
The volume of documents passing through privilege review is large — typically 5-15% of the responsive set. Manual privilege review at first-pass review cost (~$50-150/doc) means a 1M-document matter has $750K-$2.25M of privilege-review-specific cost on top of standard responsiveness review.
How AI changes privilege review
LLMs are particularly well-suited to privilege review because the task has a clearer right answer than “responsive vs non-responsive”:
- Privilege screen. Pre-filter the corpus for likely privileged material — communications where attorneys are senders or recipients, documents in attorney-controlled folders, marked-as-privileged communications. Reduces the manual review universe by 60-80%.
- First-pass privilege classification. Tag each document privileged / not privileged / borderline with a confidence score. Manual review focuses on borderline only.
- Auto-generate privilege log entries. From the document metadata and redacted content, draft the privilege log entry automatically — date, parties, subject matter, basis. Attorney finalizes; doesn’t draft from scratch.
Casetext’s CARA, Everlaw, DISCO, and Relativity (via Relativity AI) all ship LLM-assisted privilege review. The accuracy bar is high — over-flagging produces a discovery dispute about an inflated privilege log; under-flagging produces an inadvertent production. Calibration on the matter’s specific privilege patterns is the key to deployment.
Common pitfalls
- Treating all attorney communications as privileged. Many in-house communications are business advice, not legal advice. Over-flagging attracts adverse inferences and motion practice from opposing counsel.
- No subject-matter analysis. A privilege log entry that just says “legal advice” is insufficient; courts require enough detail to evaluate the claim without revealing the substance.
- Forgetting work-product doctrine. Documents prepared in anticipation of litigation by non-attorneys (consultants, paralegals working at attorney direction) can be work product even when not privileged.
- Inadvertent production. Always include a clawback agreement (FRE 502(d)) that allows recovery of inadvertently-produced privileged documents without subject-matter waiver.
- AI flags without attorney sign-off. Final privilege calls are still attorney decisions; AI accelerates the screening, doesn’t replace the call.
Related
- eDiscovery — the broader process privilege review fits inside
- Privilege log format — the deliverable that documents withheld documents
- Redaction workflows — adjacent process for partially-privileged documents
- Relativity — most-deployed platform for enterprise privilege review