Privilege and confidentiality - Subpoenas and sensitive information

Do you know what options you have available to you in preparing documents to be produced in court? Especially if these documents are of a sensitive nature or record communications between you and your lawyers?

This is part three of our four part series on subpoenas, what they mean for you and your business, and the options available to deal with them.

So far, we have examined the effect of subpoenas, and the grounds upon which you might ask the court to set one aside.

This instalment deals with the two options available to you if you wish to protect any sensitive information, including documents recording communications between you and your lawyers, and information containing commercially sensitive information.

You should follow a broad process in preparing documents for court as follows:

• Documents answering the categories sought in the subpoena should be collated by you;
• Any documents that contain communications with your lawyers, or recording commercially sensitive information, should be separated out from all the other documents into their respective bundles;
• You should end up with three bundles: (1) for general access following production; (2) marked “Subject to legal professional privilege”; and (3) marked “Subject to confidentiality”; and
• You can then seal each bundle in an envelope or in some other way and produce to the court.

It is safer to separate the documents attracting legal professional privilege from those that are commercially sensitive, as the issues that arise for each claim to protect that information are different.

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.

Part 4 of our series will examine the “implied undertaking”, which is a fundamental concept to litigation preventing parties from using information obtained during the course of litigation for any other purpose. The implied undertaking provides you with a degree of comfort that your information will not be misused following production pursuant to the subpoena process.

Authors: Gavin Stuart and Ben Hardy

Part one of our series: What to do if you get a subpoena? 5 things you need to know

Part two of our series: Setting aside a subpoena: oppression and fishing expeditions

Part four of our series: What happens after you've produced? Implied undertakings and subpoenas