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‘Welcome to the practice of law. Here is your laptop computer. Here is Bob from IT to train you on our firm’s database software. Here’s a room full of 120-gigabyte hard drives from our client’s employees, full of e-mails and other documents for you to review for privilege. Have a nice weekend.” Whether it is on a computer or in a musty warehouse full of boxes, document review has been a part of first-year associates’ lives since before the ink was dry on the Magna Carta. Any “seasoned” lawyer can tell tales of weekends spent in Topeka warehouses, anniversaries missed and kids’ school events skipped, all in the name of timely review of some mountain of documents. New associates who get their first dreaded document-review assignment may wonder why they are doing this anyway. Sure, they may stumble across the smoking gun e-mail that wins their client the judgment it is looking for or allows the client to immediately move to dismiss a frivolous claim. These moments exist, and part of the job is to find such documents. But the most important part of the review is to determine what documents the client may or may not produce in response to civil discovery requests and to identify documents that can and should be withheld on the basis of the attorney-client privilege, work-product doctrine or both. That being the case, new associates should learn and understand the basic elements of both doctrines and how they work to avoid, or at least minimize, costly mistakes in document review. First, a disclaimer: The attorney-client privilege is a common law doctrine. Thus, one should always check the law in the local jurisdiction and make sure it has not developed any unusual quirks. Similarly, in multistate, multidistrict or, increasingly, multinational litigation, one may need to engage in a choice-of-law analysis to determine precisely which jurisdiction’s doctrine of the attorney-client privilege applies. Even given the variances in the privilege across the country, the basic framework of the attorney-client privilege is generally consistent. For a document to be protected from production under the attorney-client privilege it must be a communication; made in confidence; between an attorney and his or her client; for the purpose of obtaining legal advice. There are a lot of moving parts here, and it is important to remember that the lack of any one of these elements will cause the privilege not to attach. For instance, a confidential memo between a client’s in-house counsel and the chief executive officer regarding the latest budget figures for the legal department may at first blush appear privileged-it is a communication, made in confidence, between an attorney (in-house counsel) and her client (the CEO of the company), but it does not appear to be for the purpose of obtaining legal advice. Rather, it’s a memo outlining the legal department’s budget-that is a business, not legal, communication. Presuming the document is otherwise relevant, it will likely need to be produced. Work product Unlike the attorney-client privilege, which is a privilege born of the common law, the work-product doctrine can be found in the Federal Rules of Civil Procedure (and, generally, parallel state rules of procedure) at Fed. R. Civ. P. 26(b)(3). The rule states that a party may obtain discovery of documents and things “prepared in anticipation of litigation or for trial by or for another party . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representatives of the party concerning the litigation.” As always, it’s a good idea to check the evolution of the doctrine in the appropriate jurisdiction-particularly regarding the contours of the definition of “prepared in anticipation of litigation,” which varies between “I think I might someday get sued” to “Uh-oh, the process server is outside.” For a more in-depth discussion of the definition of “prepared in anticipation of litigation,” see In re Royal Ahold, 230 F.R.D. 433 (D. Md. 2006). The near inviolate protection of an attorney’s “mental impressions” is an area young lawyers should be particularly aware of when engaging in document review. They should keep this especially in mind when reviewing documents from their client’s legal department. For instance, a binder of otherwise unprivileged documents assembled by an in-house counsel to prepare her for a former employee’s Equal Employment Opportunity Commission hearing may likely be protected by work-product protections. In going through the mass of possible documents and selecting the ones she believed to be most relevant, the in-house counsel necessarily brought her “mental impressions” of the case to bear-binding important documents together and leaving the rest. The binder should be marked “Do Not Produce-Work Product!” Of course, the underlying documents may still need to be produced, but can be done so “as they are kept in the usual course of business” or labeled to correspond to the categories in the document request, not in the bound collection assembled by in-house counsel. Fed. R. Civ. P. 34(b). Logging the results If a first-year associate who has just spent three years in law school, passed ethics and had a dazzling MPRE score says a document is privileged and should not be produced, that should be the end of it, right? If you can’t trust a lawyer, whom can you trust? Don’t dwell on that question too long. As it happens, the Federal Rules of Civil Procedure failed to adopt the “just trust me approach” to privileged documents in civil litigation. Enter the privilege log. Federal Rule of Civil Procedure 26(b)(5) provides: “When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material [i.e., work product], the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” What exactly does this mean? It means that a first-year associate should learn to use Excel or some other spreadsheet software. Documents withheld under a privilege or work-product claim need to be logged in a manner that will concisely allow one’s opponent to evaluate the claim of privilege. Generally, a privilege log should include the date of the document; the recipient; the sender; a description of the type of document (e.g., memo, e-mail, attorney notes); a brief description of the nature of the document’s contents (e.g. “Re: pending investigation by SEC” or “advice regarding litigation options”); and the type of privilege being asserted (attorney-client, work-product, etc.). In modern, high-stakes litigation, with terabytes of e-mails floating around, a complete privilege log will often rival the Manhattan phonebook in volume. Thus, it’s important to start the log as soon as possible and institute strict controls that ensure that privileged documents are immediately logged and segregated from future document productions. Associates should remember that, someday, they may need to produce these documents; thus they should also keep track of what files or sources the privileged documents were pulled from so that they can provide necessary document origin information if such documents are ultimately produced. Anyone who says document review is “fun” or “interesting” is lying. It is that simple. That said, document review is an unfortunate but necessary part of most new lawyers’ careers. It is also vitally important. Senior lawyers and, more importantly, the clients, are counting on new associates to carefully and consciously review documents for privilege and work-product protections. Much like the butterfly that flaps its wings in China and causes a hurricane in the Atlantic, a single inadvertently produced document can have disastrous, unintended and unforeseen consequences. Learning the basics of the attorney-client privilege and work-product doctrines early in one’s career-and applying these principles meticulously to document-review projects-will serve new lawyers well and help them avoid mistakes. First-year associates can also take heart: Careers are not built on document review alone; in time, it will get better. Matthew Reinhard is counsel to Washington-based Miller & Chevalier.

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