Documents remained privileged when they were sent on to third party's work email address, High Court rules

Out-Law News | 28 Apr 2014 | 9:35 am | 2 min. read

Highly confidential documents that were subject to legal professional privilege (LPP) did not lose this status when they were emailed by a party to his girlfriend, who then forwarded them to and accessed them through her work email account, the High Court has ruled.

In its judgment, the court said that it would be "contrary to the interests of the administration of justice" to hold that the claimant, a Mr Shepherd, had waived LPP in the particular circumstances of the case. His girlfriend, Francesca Liebling, had subsequently been dismissed by her employer Fulbright and Jaworski International (FJI), and Shepherd wanted copies of the documents stored on the firm's server to be destroyed before they could be disclosed as part of an employment dispute related to Liebling's dismissal.

The court's judgment turned on whether documents could be said to lose their confidentiality, and therefore their privilege, if they ended up on the servers of a firm with an electronic information policy that enabled it to monitor access to communications. Litigation expert Anthony Rance of Pinsent Masons, the law firm behind Out-Law.com, said that although the documents in this case retained their protection on the facts, it was easy to see how a different set of facts could lead to a different conclusion.

"This case starkly highlights the dangers of email when sharing privileged documents," he said.

"In this instance, the court decided that the limited disclosure of highly confidential and privileged documents by email did not amount to a waiver of privilege, so they remained protected. However, it is easy to see how a different set of facts could give rise to a different conclusion. Once the confidentiality in a document is lost, the protection of privilege will also be lost. Great care should therefore be taken when emailing privileged documents, since the wider something is circulated the harder it is to contain," he said.

LPP, or 'legal advice' privilege, attaches to confidential communications and evidence of those communications between a client and its lawyers, which were created for the purpose of giving or obtaining legal advice. In order for LPP to apply, the documents in question must be confidential.

In its submission to the court, FJI argued that Shepherd "would or should have known" that it had an electronic communications monitoring policy in place. This being the case, he would have known when sending a copy of the documents to Liebling that they would have been available for inspection by the firm as part of that policy. In her judgment, however, the judge said that there was "no foundation in fact" for this line of argument.

"The privileged documents were generated in the course of a solicitor/client relationship," she said. "They are presumed confidential and the privilege that attaches to them is a fundamental substantive right. As a matter of law, [FJI's] proposition that by sending these documents to Ms Liebling's personal email address, [Shepherd] is to be treated as having waived his privilege in relation to her employer, goes too far. It is the equivalent to an argument that if Ms Liebling accidentally left copies of the privileged documents on her office desk, and another employee or partner of FJI looked through the papers on her desk and found them there, [Shepherd] would be treated as having consented to this and to have waived his privilege in the documents."

"It would be contrary to the interests of the administration of justice if privilege is 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 cause his privilege to by lost," she said.