Q&As

My firm has received a document from the other side which appears to be privileged. What should I do?

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Produced in partnership with Sarah Mumford of Sarah Mumford
Published on LexisPSL on 05/12/2017

The following Dispute Resolution Q&A produced in partnership with Sarah Mumford of Sarah Mumford provides comprehensive and up to date legal information covering:

  • My firm has received a document from the other side which appears to be privileged. What should I do?
  • Solicitor’s duties
  • When is it 'obvious'?
  • In a nutshell
  • Injunction

My firm has received a document from the other side which appears to be privileged. What should I do?

Although this is a question about privilege, privilege is a subset of confidentiality and this response addresses the wider issues. It assumes that the disclosure is accidental, usually referred to as 'inadvertent disclosure'.

As is often the case with confidentiality, a number of conflicting principles are engaged, and careful analysis is required of the particular facts in front of you.

In short, however, as soon as you become aware that you have received information that you shouldn't have received, you should stop reading. If you know before you start that the information has been disclosed inadvertently, then you shouldn't start reading. You should then conduct an analysis of your conflicting duties and obligations (discussed further below) and document it.

You must also consider what to do about return of the documents. Ideally, you should send a letter returning them (together with all copies of the privileged documents in your possession) to the source you received them from (generally the other side’s solicitors), confirming that the documents have not been:

  1. sent elsewhere. If they have already been sent on, for example to other members of the team, explain that you will seek to ensure they are returned or destroyed

  2. read other than to the extent necessary to realise they were

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