Disclosure triage

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.