In many of our collections, the bulk of the documents were turned over by tobacco companies in lawsuits; the usual terminology is that documents are "produced" in "discovery."

There are two principal grounds for a defendant to refuse to produce documents that are relevant:

1. The documents would reveal communications with attorneys for the purpose of seeking legal advice, generally known as "privileged" materials; or
2. The documents would reveal economically valuable information, generally known as "confidential-trade secret" information, such as marketing plans and (future) research budgets. 

The general category of "privileged" materials includes documents withheld from production due to claim(s) of attorney-client privilege (AC), work-product protection (WP/OWP), and joint-defense or common-interest privilege (JD/CI). See Privileged Document Codes for more information. Confidential trade-secret documents are often produced to the other side in a lawsuit, but under protection of a court-issued "protective order" that lets the documents be designated as "confidential" and prohibits the receiving side from disclosing them to anyone else.

The Master Settlement Agreement (MSA) of 1998 and the judgment in United States v. Philip Morris USA, Inc (the RICO trial) require the tobacco companies to create public websites disclosing their documents produced in litigation.  In general, the court orders do not require them to post documents that they consider privileged or confidential.  Documents withheld on these grounds can be withheld in their entirety or, sometimes, only in part, when the specific privileged or trade-secret information is blacked out or whited out ("redacted") and the rest of the document is publicly posted.  To keep track of documents withheld on privilege or confidential grounds, the companies are generally required to provide spreadsheets that itemize the relevant documents; a "privilege log" and a "confidentiality index."

LTDL uses the "Status" field to provide information about documents that companies have listed on a privilege log or confidential index. For most documents, this field is blank, because the document has never been withheld from production on grounds of privilege or confidentiality. For documents that a company currently does not post to its public document website on grounds that the document is privileged, the "Status" field says "privileged" and often includes specific codes explaining the type of privilege claim under which it was withheld from production. For documents that a company currently does not post to its public document website on the grounds the document is confidential, the "Status" field has the value "confidential".

• To find documents designated "privileged", search the Document Status field (st:) for the term "priv*" like:
  st:priv*
• To find documents designated "confidential", search the Document Status field (st:) for the term "conf*" like:
  st:conf*
• To find documents that were once designated "privileged" but have since been released by the company for viewing, search the Document Status field (st:) for the letter "U" like:
  st:U
• To find documents that were once designated "confidential" but have since been released for viewing, search the Document Status field (st:) for the term "formerly" like:
  st:formerly

When a document has been withheld on privilege or confidential trade-secret grounds, there is no document image attached to that metadata record. Instead, in the search results, there is an informational icon next to the title along with a note informing the user "Neither PDF nor TIFF Available."

In some cases, LTDL may actually have a copy of a privileged or confidential document and when this occurs, there is often more than one record for the specific document.  There are multiple reasons for this.  In some lawsuits, plaintiffs have challenged tobacco companies' assertions of privilege for various documents, and courts have overruled the privilege assertions and ordered the documents to be produced. This occurred during the Minnesota State Attorney General lawsuit, when the court rejected the tobacco companies' privilege claims for all documents in several particular areas, and ordered all of those documents to be produced to the plaintiffs. The same documents were later subpoenaed by Thomas Bliley, the chairman of the House Commerce Committee, and he ordered them made public. The 38,776 documents comprising the Bliley Collection are public and LTDL provides copies of all of those documents.

If the tobacco companies previously put Bliley Documents on their privilege logs, their privilege assertion generates one entry for a document record in LTDL and a copy from the Bliley Collection or elsewhere generates another record entry in LTDL. Similar processes have occurred as a result of privilege challenges in other lawsuits, including United States v. Philip Morris USA, Inc. Another way that we can acquire images of such documents occurs when companies voluntarily withdraw their previous privilege claims. This can happen when companies review documents previously withheld on privilege grounds, redact portions that they consider privileged, and post the rest.

LTDL periodically seeks to identify documents that are on a company's privilege log or confidential index, but for which we have acquired a copy. When we find such matches, we provide a link to the "Public Version" of the document(s) at the bottom of the metadata record.