Attorney-client privilege (sometimes called  ‘lawyer-client’ or ‘legal professional’ privilege) can be applied in a range of different scenarios to protect disclosure of information. Recently New Zealand’s Attorney-General refused to release its legal advice, relating to the Government’s COVID-19 response, to a powerful parliamentary committee, asserting legal professional privilege.

In this article I look at the impact that attorney-client privilege can have on discovery proceedings, drawing on an influential 2013 decision of Australia’s highest court. 

What is attorney-client privilege?

In the United States, this generally applies where: 

– The person in question is a client; 

– The person is communicating with a member of the Bar, or their subordinate; 

– The purpose of the communication as legal advice. 

Core exceptions include: 

– Where the communication was made in the presence of others;

– It was made in order to commit a crime or tort;

– The client has waived the privilege. 

In other common law jurisdictions, such as the United Kingdom, Australia and New Zealand, there is a similar concept, but divided into two narrower sub-types of legal professional privilege: 

– Legal advice privilege. This relates only to legal advice between the client and the lawyer;

– Litigation privilege. This includes communication between a client, a lawyer and any third party, where the dominant purpose is anticipated or actual litigation. 

A Potential Discovery Risk for Attorney-Client Privilege

What happens if legally privileged communications are accidentally released in a discovery process? Is this a waiver of privilege? In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, the High Court of Australia considered this situation. 

In that case, the appellant followed a manual process for categorization of documents. Documents were automatically coded ‘no’ for legal professional privilege, and they had to be switched to ‘yes’ by the ‘coder’ if privileged. The initial coder(s) made a mistake in categorising 13 privileged documents as ‘no’,  and this was not picked up in the audit by a senior solicitor. 

Lawyers on both sides produced their documents for discovery.  Once the mistake was discovered, the respondent’s solicitors refused to return the documents on the basis that privilege had been waived. 

While earlier Australian decisions and overseas case law supported the suggestion that privilege had been waived, the High Court of Australia took a different approach. They reasoned as follows: 

– The purpose of any civil proceeding as set out in state legislation was “to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings”;

– Both the court and lawyers themselves were required to align their actions with this purpose; 

– Refusing to return the documents did not align with this purpose. 

The court concluded that the documents must be returned to the appellant. The court also noted that a refusal to return the documents could be a violation of the ethical and professional duties of lawyers in Australia. 

Implications for eDiscovery

While this decision did turn on specifics of Australian state legislation, there are some general lessons that could be drawn from it about eDiscovery processes: 

– Manual processes always have been, and always will be subject to a significant risk of human error; 

– When thinking about coding (whether manually or using a predictive coding process), lawyers need to think carefully about using any ‘default’ switches. In this case, defaulting to release made it very easy for inadvertent release of privileged documents to occur;

– Carefully consider your audit processes for discovery. Which proportion of your documents will be audited, and have you adjusted that to the risk of disclosure?

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