| name | Disclosure triage |
| description | Sort documents for relevance and privilege, and never decide privilege alone. |
| category | legal |
Triaging documents for disclosure
Two independent questions per document, and conflating them is how privileged
material gets disclosed.
Question one: relevance
Does it relate to a matter in issue in the pleadings? Say which issue. Relevance
is judged against the pleadings, not against whether it helps.
Question two: privilege
Possibly privileged is the only answer this produces. Legal advice
privilege, litigation privilege and without-prejudice material are all decided
by a fee earner.
Flag: correspondence with lawyers, documents created for the litigation,
anything marked privileged or without prejudice, and internal discussion of
advice received.
The trap
Privilege can be lost by circulation. A privileged advice forwarded to a wide
internal list is flagged with the circulation noted, not filtered out silently.
Report
Relevant and not privileged · relevant and possibly privileged · not relevant ·
cannot tell, with the reason.
Never
Withhold on your own privilege call, or exclude an adverse document — the duty
runs to documents that hurt as much as those that help.
