In a recent decision, the High Court refused an injunction to prevent some claimants’ use of privileged material which the defendants claimed to have disclosed in error. For more on the specifics of the case, please take a look at: Flowcrete UK Ltd v Vebro Polymers UK Ltd [2023] EWHC 22 (Comm) as I won’t go into that here.

That being said, this Herbert Smith Freehills blog explains that, whilst the court can intervene to prevent use of privileged documents where they have been provided to the opponent in error in the course of a disclosure exercise, it will not generally do so unless disclosure was procured by fraud or was an obvious mistake. The blog explains that the decision highlights that the burden is on the disclosing party to establish both that the documents were provided by mistake and that the mistake was obvious, and the court may take a strict approach in deciding whether that burden has been met.

From my experience, privilege can be a complex topic that varies from jurisdiction to jurisdiction, and it is certainly a key topic to be considered when undertaking an eDiscovery exercise.

When it comes to identifying potentially privilege material, there are – in our opinion – a few guidelines to adhere to. For instance, it’s essential to:

  • Complete separate searches;
  • Use AI to do quality control;
  • Plan upfront;
  • Build in the necessary time to allow for appropriate privilege testing;
  • Ensure consistency throughout the process. 

Likewise in terms of a what else is fundamental, we would always suggest running searches for privilege terms, as well as running searches to identify duplicates of privilege documents which haven’t been tagged as such. Similarly, one should aim to run searches to identify email threads and near duplicates of privilege documents too.

In addition, we would recommend running conceptual analytics too where possible. Clustering can be helpful if it is run on documents marked as privilege well as the rest of the document population. You can then see which clusters the privilege documents appear in and investigate other documents in those clusters.

We would also recommend investigating email domains and running a separate CAL workflow to identify privilege material.

Here at A&M, we always collaborate with clients to ensure that the legal decisions and methodologies are fully and properly implemented across the data. Our collective approach ensures that this is done effectively and efficiently, using technology, and more specifically machine learning algorithms to help.

Special thanks to Klaudia Aliaj and Gary Foster for contributing to these points above and for contributing to this post.