Some company employees incorrectly think that labeling a document as “privileged” makes it privileged. This is a dangerous myth. On the other hand, some lawyers and client employees are not careful enough to put a “privileged” notation on documents that deserve the privilege. This is less dangerous than the first mistake, but misses an opportunity to bolster a privilege claim and avoid a disastrous waiver of the privilege.
In Lifewise Master Funding v. Telebank, 206 F.R.D. 298, 301 (D. Utah 2002), the court discussed these issues. The court explained that “[i]t is not necessary that a document be labeled as privileged in order for it to be subject to an Attorney/Client or work product privilege, if the document otherwise fits within such a privilege. On the other hand, labeling a document as privileged does not meet the privilege claimants’ burden of establishing the privilege claim. The labeling may alert a recipient of the document of a possible privilege claim and thereby invoke ethical inquiry by the recipient to determine if the document was privileged.”
Lawyers should advise their clients that labeling a document as “privileged” does not automatically confer the privilege protection, but may trigger an adversary’s duty to return an accidentally disclosed document.