Waiving privilege? Be on guard

We consider waiver of privilege and a recent case to discuss the issue in the context of electronic information policies. What are the key factors regarding waiver of legal privilege? What protective steps can be taken to ensure privilege is maintained?

What is privilege?

Privilege entitles a party to withhold written or oral evidence from production to a third party or the court. In English common law privilege is a fundamental human right intended to protect the relationship between lawyer and client and upon which the administration of justice as a whole rests.

Privilege enables the client to consult a lawyer in confidence without fear of those confidential communications having to be disclosed. The rule is absolute. Without exception it cannot be broken once established for so long as it persists.

A party may choose to waive privilege in a document or part of a document which is helpful to their case. Choosing to waive privilege may have unexpected consequences as the courts have found on occasion that the waiver extended further than anticipated.

How can privilege be waived?

Privilege may be waived in several different ways:

• By placing privileged material before the court.
• By loss of confidentiality in the material.
• By conduct. For example, in professional negligence proceedings against a solicitor, a client has impliedly waived privilege to the extent that it is necessary for the court to determine the matter. The test is whether the document has been "deployed" in court i.e. used to support a parties case.
• By accidentally disclosing it to a party - unless it is obvious to the recipient that a mistake had been made.
• By express waiver. In B v Auckland District Law Society [2003] UKPC 38 it was held that where privileged documents have been disclosed to an individual on express terms that privilege in them is not waived, privilege will not be lost in those documents.
• By limited waiver. Privileged documents may be disclosed to a third party on the basis that they will only be used for certain limited purposes (Berezovsky v Hine & Ors [2011] EWCA Civ 1089).

What happens if I email documents?

In Shepherd v Fox Williams LLP and others [2014] EWHC 1224 (QB) the court was asked to consider whether the claimant had waived privilege in highly confidential documents by emailing them to his girlfriend at her personal email address, who in turn, forwarded them to her work email address. His girlfriend later became involved in proceedings with her (former) employer who disclosed the claimant's documents. The claimant issued proceedings against the employer and its solicitors, seeking the destruction and delivery up of the documents.

The key issue turned on the principle that confidentiality (and therefore privilege) may be lost in a document if it is made generally available. The defendant argued that they had been made available because as an employer it was entitled through its electronic information policy to inspect its servers and obtain the claimant's documents held on his girlfriend's work email account.

The court found that it would be contrary to the interests of the administration of justice if privilege were regarded as waived in these circumstances, or treated as waived generally because a privileged document is disclosed for a limited purpose by a party who plainly would not contemplate doing anything which might undermine his privilege.

The circumstances were equivalent to a situation where the claimant's documents had been left accidentally on an office desk and it being said that by another employee looking through them the claimant would have consented to this and waived privilege. The fact that the claimant might not be able to assert privilege against his girlfriend did not mean that he had waived privilege more generally against the employer.

Key points to consider

Although Shepherd provides some comfort in relation to the waiver of privilege, it is still important to consider the possibility of inadvertent waiver and approach it with caution.

A key question when deciding whether to provide inspection of a privileged document is whether this might lead to the waiver of privilege more widely.

The following practical points should be considered:

• Waiving privilege in one document may waive privilege in other documents.
• Be aware that waiver could inadvertently extend to all material dealing with a transaction, or the suite of documents of which the disclosed document is part.
• Where a document addresses a range of topics, irrelevant or privileged material may be redacted without disclosure of the remainder amounting to a waiver of privilege to the whole document.
• Avoid "cherry picking" parts of privileged material to disclose and others to withhold.
• Ensure that there are express terms which state that privilege is only being waived for certain specified purposes and on strict terms as to confidentiality to try and protect the claim to privilege against the wider world.

If you are in any doubt about whether privilege applies or if your actions could affect privileged documents seek legal advice.