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  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…
If you are registered and logged in to the site, click on the link below to read the rest of the King & Wood Mallesons briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from The Lawyer
Analysis from The Lawyer
Shanghai’s ground-breaking Pilot Free Trade Zone could mark the beginning of the long-awaited liberalisation of China’s legal services sector.
Hong Kong IPO activity is hotting up again, but UK legal stalwarts are looking over their shoulders as US rivals make up ground fast