PAGE 07 BARTIER PERRY LAWYERS - EMPOWERING INSIGHT Legal professional privilege Once the bundle of documents marked “Subject to legal professional privilege” are lodged with the court, they cannot be inspected by any other party until the court otherwise orders. You should note however, if the court is pressed by one of the parties to the dispute, the onus is on you, as the party claiming privilege, to satisfy the court that access to the produced documents should be denied. In essence, there are two types of legal professional privilege, being documents recording confidential information between a lawyer and a client, or the contents of that communication, created for the dominant purpose of providing: - Legal advice to the client (Advice Privilege); and - Professional legal services relating to litigation (Litigation Privilege). If you have documents that fall within either of those categories, you should consult a lawyer for advice on how best to show the court that the documents attract legal professional privilege, and so access to them should be denied. Commercially sensitive If you are producing commercially sensitive information, you should be aware that the rules are not as clear, nor as favourable to you. However, courts may be inclined to protect your rights in respect of commercially sensitive information in some circumstances. The fair balance to be struck is between the interests of the parties seeking to review the documents, and the party claiming confidentiality. Such considerations are especially relevant if you, as the subpoenaed party, are a trade rival to one of the parties to the litigation. Increasingly, courts have been inclined to limit access to such documents to the legal advisers of the litigants, subject to those individuals providing a confidentiality undertaking not to disclose such information to clients or any other person. Again, if you are producing information that is commercially sensitive, you should seek legal advice in order to best protect your information. Summary That concludes our examination of the issues of privilege and confidentiality in documents subject to subpoena. Remember, you need to separate the documents requested into their respective categories. If in any doubt, contact your legal adviser.