Waiving privilege? Be on guard

By Robert Syms

We consider waiver of privilege and a recent case to discuss the issue in the context of electronic information policies. What are the key factors regarding waiver of legal privilege? What protective steps can be taken to ensure privilege is maintained?

Privilege entitles a party to withhold written or oral evidence from production to a third party or the court. In English common law privilege is a fundamental human right intended to protect the relationship between lawyer and client and upon which the administration of justice as a whole rests.

Privilege enables the client to consult a lawyer in confidence without fear of those confidential communications having to be disclosed. The rule is absolute. Without exception, it cannot be broken once established for so long as it persists…

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