The idea that documents are privileged is common sense, if you understand it, but requires a bit of explanation. An email or letter from you to a qualified lawyer (lawyer or lawyer) requesting advice and the written legal advice you receive are examples of documents that are preferred. The reason why the law does not require these documents to be made available to the other party (at the stage of disclosure of the documents) is obvious: it would give one party an unfair advantage to receive advice on the strengths and weaknesses of the other party`s case, and if written advice were to be given, This would lead people to only seek oral advice from a lawyer. And never have anything in writing, with all the risks of forgetting or misunderstanding that would imply. If a party wishes to argue that it has the right or obligation to refuse access to a document, it must indicate that it has that right or obligation and the reasons for invoking that right or obligation. It is at the discretion of the court whether or not to order disclosure. Under litigation privilege, communications between lawyers and employees who are not part of the corporate client group may be privileged under English law. This is explained below. Disclosure should be taken seriously as it can have a significant impact on the outcome of proceedings.
For example, credibility before the courts may be compromised by improper disclosure if records have been neglected or destroyed. Relevant documents must be disclosed, whether confidential or not, unless privileges apply. Sensitive information that is not relevant to the litigation and contained in a document that is to be disclosed may be redacted or redacted, and in some cases there is an obligation to do so. After a lawsuit starts (or if you think about it), there will be things you write down not only to get legal advice, but simply to help you do what`s necessary for the litigation itself — like making a list of things you need to do to comply with a court or court order. or write down your memories of past events so that you can finally include them in a witness statement. As you might expect, the law does not require you to show the other party what you have written, and such documents created for litigation purposes are also preferred. If you exchange testimony with the other party by sending the final signed testimony to the other party, you “waive” the privilege in this document, but an earlier version, before making corrections, remains preferred. Photos are “documents” and the same principle applies: all photos you take for litigation purposes are privileged, so you are not obliged to disclose them, but of course you would normally choose to disclose them (or some of them – the clearest ones) at the stage of disclosure of the documents (and therefore waive privilege), Because you want to use them at the last hearing (court hearing) to prove your case. In addition to communications, the privilege also extends to material created to promote litigation.
Traditionally, cases have been aimed at protecting “documents of the letter.” [106] A modern reformulation of this principle is that, in an adversarial system, “each party should be free to prepare its case as fully as possible, without running the risk that its adversary will be able to recover the material generated by its preparations.” [107] With respect to documents actually prepared by a client`s counsel, it is easier to see that they are indeed protected by solicitor-client privilege. [108] The notion of “order material” would apply to preparatory documents prepared by the client that do not contain communication with third parties (e.g., client working notes or internal oral or documentary communications). If the document satisfies the other requirement of litigation privilege (see below), it also applies to a document created to be shown to a potential adversary in circumstances where the document has not been or has not yet been disclosed to that adversary. [109] In Raiffeisen Bank International v. Asia Coal Ventures,[226] the Court of Appeal confirmed that a statement made by a lawyer to a third party about instructions received from a client does not automatically and automatically result in a loss of confidentiality of the documents containing or justifying those instructions. However, the privilege will be revoked if the customer questions the content of these instructions. Again, it is suggested that this should be understood as a waiver of privilege if the client relies on the content of the instructions in a manner that results in a waiver in accordance with the established principles of implied and collateral waiver, as set out below. Expert advice should be sought before sharing privileged information. Privileges depend on the confidentiality that can be lost by broadcasting. In general, the three citations are not privileged because, although they are relevant to the dispute, your main reason for requesting their submission is simply to address the practical problem of a collapsed wall, regardless of the issue of the dispute. The expert report, on the other hand, is preferred because you commissioned it to prove your case in the dispute.
Although privileges, once established, remain indefinitely, they can be lost, mainly in two ways. First, the party entitled to claim the privilege may waive it. This can be done explicitly, for example, by choosing to present privileged documents to the courts. To this end, partial disclosure of a privileged document usually involves a waiver of privilege with respect to the entire document. [219] The waiver is also implied (implied waiver) in some proceedings.