Litigation: Inadvertantly disclosing privileged documents during the discovery process


In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, the inadvertent disclosure of documents covered by legal professional privilege was considered.  In this case, during the process of discovery, the appellant's solicitors, Norton Rose Fulbright Australia, provided 13 documents to the solicitors for the respondent, Marque Lawyers, due to a misclassification of those documents as being non-privileged.  Discovery is the process in litigation where parties exchange documents that are relevant to the issues in dispute.  A party does not have to produce a document if that document is covered by a form of privilege such as legal professional privilege.

Norton Rose contacted Marque Lawyers as soon as they realised the inadvertent disclosure of privileged documents had occurred and requested that Marque Lawyers return the documents and enter into an undertaking that the documents would not be relied on in the proceeding.  Marque Lawyers refused on the grounds that privilege had been waived.

It was held by the primary judge that 9 of the 13 documents remained privileged.  This was due to those 9 documents being listed as both privileged and non-privileged in the list of discoverable documents.  It was held that the dual classification was enough to highlight the intention to claim classification of privilege over the documents.  As 4 of the documents disclosed were classified as non-privileged only, the primary judge held that it was not clear that the respondents intended to claim privilege over those documents. 

On appeal, it was held that privilege had been waived.  It was held that the act of discovery is an intentional act that was carried out by Norton Rose, the lists of document were verified and certified and there was a lapse of time between the disclosure of the documents and the claim of mistake.  It was also held that the mistake was not obvious. 

On appeal to the High Court, the High Court held that the documents were privileged and that it was clear that the documents had been disclosed inadvertently.  The High Court noted that care had been taken in preparing the discovery and Norton Rose acted promptly to try to correct the mistake.  Where large commercial discovery takes place, it follows that mistakes are more likely to occur.  The High Court held that care should be taken when preparing lists of documents for discovery to prevent inadvertent disclosure.  Whilst lawyers should be able to resolve such an issue themselves and return documents that were disclosed inadvertently, the Court does have the power to correct a mistake where a dispute occurs.

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