disclosure-triage

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.