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The question of when, and in what circumstances, a document capable of enjoying the protection of legal professional privilege will be said to have lost its confidentiality such that privilege cannot apply has arisen in two cases in separate jurisdictions in recent weeks.
The need for a document or communication to be confidential in nature in order to be capable of attracting privilege is easily satisfied in the majority of situations lawyers encounter on a day-to-day basis. However, circumstances sometimes arise where this seemingly straightforward matter becomes somewhat muddied and lawyers and judges are left grappling with difficult determinations. Such was the challenge for the Singapore Court of Appeal in Wee Shuo Woon v HT S.R.L.  SGCA 23 and the English High Court in Nicholas Guy Simpkin v The Berkley Group Holdings PLC  EWHC 1472 (QB).
This case arose out of a dispute between the appellant and the respondent in connection with the former’s employment with HT. During the litigation between the parties, HT’s computer systems were hacked and 500GB of data were taken and uploaded to WikiLeaks (there was no evidence that the appellant was involved). Among the material uploaded were emails between HT and their lawyers, some of which related to the litigation between the two parties (which both accepted would have been privileged when originally sent). The appellant obtained copies from WikiLeaks and exhibited them in an affidavit served as part of the litigation. The appellant applied for all references to the emails in the affidavit and the exhibited copies to be removed.
Before the Singapore Court of Appeal, the appellant argued that the emails had become so widely accessible to the public as a result of their upload to WikiLeaks that they had lost the necessary quality of confidence and so could no longer be said to be privileged. The Court disagreed, holding that the key consideration was not simply whether or not the material had become technically accessible to the public, but “whether the degree of accessibility of the information is such that in all the circumstances, it would not be just to require the party against whom a duty of confidentiality is alleged to treat it as confidential”. The Court pointed to the fact that in this case the relevant emails represented a tiny amount of the material taken from HT’s systems and uploaded to WikiLeaks, searching through the material would have been very time-consuming, it was very likely that in reality few, if any, people knew of the existence of the emails, and even fewer would have had the interest or inclination to trawl through the data. The Court therefore held that although the emails were theoretically accessible to anyone carrying out a detailed search on WikiLeaks, they could not be said to have become “public knowledge” or entered the “public domain”, therefore retaining their confidential and privileged status.
In this case, which concerned a dispute arising from the claimant’s removal as a director of the defendant company, the High Court had to determine several applications made by both parties in connection with issues of privilege. One of the applications concerned a blank email the claimant had sent from his work account to his personal email address, along with its attachment, which was a document also created by the claimant on his work computer which was to be sent on to his solicitor for advice in relation to his then on-going divorce proceedings. The defendant referred to these documents in their witness statements and so the claimant, asserting that they were privileged, sought an order striking out those parts of the statements and preventing the defendant from relying upon the documents further.
Garnham J refused the claimant’s application and held that the circumstances in which the documents were created were such that they could not be said to be confidential as against the defendant, and so the claim to privilege failed. The judge’s decision was influenced by the fact that the claimant had signed a copy of the company’s IT policy which made it clear that emails sent and received on its IT system were the property of the defendant, the IT department had access to all the company’s computers and email accounts, the claimant’s employment contract made clear that his emails were subject to monitoring by the company without his consent, the document was saved by the claimant on one of the company’s central servers, it was not password protected and it was not kept separate from his work documents. In addition, the claimant’s personal assistant had access to his emails. There could therefore be no suggestion that the claimant had a reasonable expectation of privacy as against the defendant in respect of these two documents and so he was unable to claim privilege over them.
Both cases highlight the increasing challenges presented to lawyers and their clients when asserting privilege, due to the impact of modern technology and the way in which we now produce documents and communicate with each other. Although the common sense approach adopted by the Court in Wee Shuo Woon v HT S.R.L. ensured that the company’s rights were protected, it is important to stress that this decision was fact-specific and could have been decided differently if the documents had, for example, been brought to the attention of more people or leaked via a different method. These two judgments act as a strong reminder of how vitally important it is to take steps to ensure that confidentiality in a potentially privileged document is protected.
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