Hide and seek

One of the critical stages of litigation is the point at which the opposing parties are required to reveal to each other all of the documents they have in their possession which are relevant to the claim, and whether they help or hinder the disclosing party’s case. This process is called disclosure.

The disclosure process is usually undertaken early on in a claim and sometimes even before a claim is issued. However, the duty of disclosure continues as a claim proceeds so if a new document is discovered at a later stage, it must still be disclosed.

There are a few categories of documents which are exempt from disclosure. One such category are those documents that are subject to ‘legal advice privilege’. Documents that fall within this category are documents which were created or sent for the dominant purpose of obtaining or providing legal advice. If the ‘dominant purpose’ condition is satisfied, the documents are protected.

The document must have been created for the primary purpose of seeking or providing legal advice. The Court of Appeal has ruled in a recent decision that one cannot claim legal advice privilege simply because you have copied in a lawyer to an email as a third party to a discussion about commercial matters. It is the nature of the email that must be assessed. Was the purpose of the email to seek or provide legal advice? If not, simply copying the lawyer to the email provides no protection at all; the email will be disclosable.

Nor can one claim legal advice privilege because you have arranged for a lawyer to sit in on a meeting purely on the off-chance that their assistance may be required and in order to render the meeting minutes subject to legal advice privilege. What was actually discussed at the meeting? The mere presence of the lawyer will not result in the minutes becoming privileged. If legal advice is provided by the lawyer, the minutes may still need to be disclosed if the sections can be redacted. 

Other categories of privilege include without prejudice privilege, public interest immunity privilege, common interest privilege and privilege against self-incrimination.

The lines can certainly become blurred when it comes to disclosure and whether a document is subject to privilege or not. It is important to understand that you cannot pick and choose which documents you wish to disclose. It is also equally important to be aware of the risk of creating documents that will subsequently fall to be disclosed. So one has to think carefully about those emails and memos that are created during the course of business and managers in particular should be trained to consider the implications of creating documents (including electronic documents).