King & Wood Mallesons

Asia-Pacific 100 position: 2

High Court steps in to correct the inadvertent discovery of privileged documents in litigation

The thought of inadvertently disclosing privileged documents to an adversary in litigation has often sent a chill up a lawyer’s spine. Would such inadvertent disclosure result in the client’s privilege being waived? Will the courts assist and order the documents be returned? The High Court has confirmed that where privileged documents are mistakenly disclosed, the courts have the power to correct the mistake. However, lawyers cannot shirk their responsibilities; they must take reasonable steps to ensure mistakes do not occur and must promptly act to correct a mistake once it becomes apparent. King & Wood Mallesons considers the High Court’s decision below.

The High Court was given an opportunity to consider issues of inadvertent disclosure in the case of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46. The case concerned parties in a commercial dispute that were ordered to give general discovery. The appellants’ solicitors used an electronic database to review and code thousands of documents. Documents that were subject to client legal privilege were mistakenly coded as ‘non-privileged’ in the lists of documents that were given to the respondents’ solicitors.

The documents were also inadvertently disclosed on disks that were given to the respondents’ solicitors. As soon as a partner became aware of the mistake, he wrote to the respondents’ solicitors claiming that several documents had inadvertently been disclosed contrary to the clients’ instructions. He requested that the documents be returned and that the solicitors undertake not to rely on them in the legal proceedings. At no stage was there any dispute that a mistake had been made; however, the request to return the documents was refused on the basis that privilege had been waived…

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