Assess privilege and work-product risk before advice files are ingested into a knowledge tool
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- Classify each file the lawyer marks as client advice, a communication with the client, or a document prepared for litigation, and note who already has a copy. Do not decide that privilege will survive ingestion.
- What the lawyer must review
- Rule 26(b)(1) limits discovery to any nonprivileged matter that is relevant to a claim or defence and proportional to the needs of the case. Rule 26(b)(3)(B) requires a court that orders discovery of trial-preparation materials to protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party's attorney or other representative concerning the litigation. A party that withholds information as privileged or as trial-preparation material must expressly claim the protection and describe the nature of the items without revealing the protected information (Rule 26(b)(5)(A)). Model Rule 1.6 is broader than privilege: it covers information relating to the representation. Formal Opinion 512 requires informed consent before client information goes into a tool that does not preserve confidentiality. You decide whether ingestion waives privilege or breaches Rule 1.6. Do not ingest the file in order to ask the tool whether it is privileged.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Potential support includes extracting and organising information. Confirm the tool’s capability and permitted scope. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Confirm that the actual tool, feature and processing terms permit use of this information, including access, retention, training and disclosure conditions.
- Confirm the output against the client’s instructions and the complete relevant source material, including omissions or contradictions.
- Resolve exceptions and record the responsible lawyer’s approval of the exact output and intended use.