Is legal professional privilege lost if a document is made generally available?

In a recent case, the High Court considered whether the claimant had waived privilege in confidential documents simply because they had been seen by someone other than the claimant and his lawyer.

An employee of Fulbright & Jaworski International (FJI) forwarded confidential documents sent to her personal email address by the claimant, Mr Shepherd (with whom she was having a relationship), to her work email account. When she opened the documents at work, and unknown to Mr Shepherd, FJI’s server automatically stored a copy of the documents. During employment tribunal proceedings between FJI and the employee, the confidential documents were disclosed. The documents in question contained highly personal information in connection with Mr Shepherd’s divorce proceedings with his former wife. When Mr Shepherd found out about the disclosure, he brought a claim in the High Court for delivery or destruction of the confidential documents on the basis that they were privileged and later made an application for summary judgment.

At the hearing of the application, the court considered several issues, but for the purposes of this article the key issue was whether Mr Shepherd’s act in emailing the documents to the employee amounted to a waiver of privilege…

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