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COVID-19 Rescue Moratorium Passport to disclosure and privilege Your global guide Paul Worth The law on disclosure and Co-Head of Global Litigation privilege differs between Eversheds Sutherland common law and civil law T: +44 207 919 0686 M: +44 790 968 4372 jurisdictions and from [email protected] country to country. Rocco Testani Our litigation and arbitration practice has a truly Co-Head of Global Litigation international reach with offices across the UK, Eversheds Sutherland Europe, Middle East, Asia, Africa and the US. Our T: +1 404 853 8390 dedicated teams from across the globe have M: +1 678 613 9954 collaborated to provide you with a quick [email protected] reference guide to the approach to disclosing documents and privilege across different Kymberly Kochis jurisdictions. For advice on specific issues, please Co-Head of Global Litigation get in touch with the contact/s for each Eversheds Sutherland jurisdiction. This is a free resource provided to T: +1 212 389 5068 our clients and the wider business community. M: +1 267 567 2946 We hope that you find the guide helpful for you [email protected] and your teams and welcome any feedback you may have on its future development. The information contained in this document is intended as a guide only. Whilst the information it contains is believed to be correct, it is not a substitute for appropriate legal advice. Eversheds Sutherland can take no responsibility for actions taken based on the information contained in this document. Jurisdictions UK Jurisdictions Rest of Europe Hungary Slovakia Middle East Asia Africa The Americas England and Wales Austria Italy Spain Jordan Hong Kong Egypt Brazil Northern Ireland Belgium Latvia Sweden Qatar Japan Madagascar United States Scotland Czech Republic Lithuania Switzerland The Kingdom of People’s Republic Mauritius of America Finland Netherlands Republic of Ireland Saudi Arabia of China South Africa France Poland Russian Federation UAE Singapore Tunisia Germany Portugal Zimbabwe England and Wales Are parties to litigation required to disclose documents? Disclosure against a third party. Some documents do however, Can the right to withhold a document be lost and if Generally yes. The process is called Disclosure and Inspection have to be provided automatically, for example: documents so how? and is governed by the Civil Procedure Rules (‘CPR’), in particular referred to in a party’s statement of case or documents required under any applicable pre-action protocol. Yes. Privilege can be lost if the document is no longer CPR Part 31 and Practice Directions 31A-31C. Other CPR Practice confidential or by express or implied waiver. In addition, Directions cover cases falling within pilot schemes or specialist Are there any exceptions when a document can be documents made to further illegality are not protected. proceedings with bespoke disclosure regimes (for example: the withheld from disclosure? Disclosure Pilot Scheme - CPR Practice Direction 51U; Shorter & Do regulators and investigative bodies respect the Yes. A document may be withheld if it is privileged. There are Flexible Trials - CPR Practice Direction 57AB). Disclosure means concept of privilege? many categories of privilege but the most common is legal stating whether or not a document exists. A party is under an professional privilege, which comprises legal advice privilege Yes. Privilege will be a defense to a regulator’s demand for obligation to disclose the existence of documents which fall (which generally protects documents between lawyer and client) documents under its statutory powers, unless the statute within the scope of the Court’s order for disclosure. The Court and litigation privilege (which generally protects expressly or by necessary implication overrides privilege. will limit disclosure to that which is necessary to deal with the communications made in connection with litigation). Other However, there is an increasing appetite for regulators to case justly, taking in accounts issues of proportionality and types of privilege include: without prejudice privilege (which dispute claims to privilege. relevance. A party to whom a document has been disclosed has protects communications made in a genuine attempt to settle a the right to inspect that document. The duty to provide dispute), privilege against self-incrimination, public interest Disclosure continues up to the conclusion of the case. immunity, joint privilege and common interest privilege. What is a ‘document’ for the purposes of that process? Paul Worth Would documents between a lawyer and a client fall Co-head of Global Litigation, A document is anything in which information of any description within such an exception? If so, what is the legal test? Eversheds Sutherland is recorded. ‘Copy’, in relation to a document, means anything onto which information recorded in the document has been Potentially yes. As mentioned previously, documents between a T: +44 207 919 0686 copied by whatever means and whether directly or indirectly. A lawyer and a client could fall within the legal advice privilege M: +44 790 968 4372 document is not limited to paper, so may be in electronic format category even where no litigation is in existence or [email protected] including computer databases, memory sticks, mobile phones, contemplated. The document must be made in confidence for email, text messages, webmail, social media, voicemail and audio the dominant purpose of giving or receiving legal advice. Only or visual recordings extending to information that is stored or documents between the lawyer and individuals authorized to Helen Eastwood backed-up, including metadata and other embedded data. obtain legal advice, within the client organization will be protected. Head of Professional Support, Is the requirement to provide documents automatic and Eversheds Sutherland when does it arise? Does this include lawyers who work within an organization as opposed to in private practice? T: +44 121 232 1435 Disclosure is not automatic and is generally dependent on a M: +44 788 765 8416 Yes, as long as they are acting in capacity as lawyer.* Those court order that is made at the first substantive procedural [email protected] hearing. Disclosure generally takes place after that hearing. who work under the direction and supervision of the lawyer Under the Disclosure Pilot Scheme, Initial Disclosure is generally are also included. It also includes foreign in-house lawyers. provided with the statement of case and Extended Disclosure *This does not apply to European Commission Competition Law investigations. may be ordered at the first substantive hearing. A party can ask Hannah Nichols Do parties to litigation have any other specific the Court, at any time (although usually it is after Inspection has Head of Professional Support, taken place) for an order for another party to provide Disclosure additional rights to withhold documents? Eversheds Sutherland of specific documents or classes of document. It is also possible The primary basis on which documents can be withheld is if the T: +44 115 931 7614 for a party to apply to Court for an order for Disclosure against a document is privileged, as to which see above. Parties can also M: +44 770 204 1495 party (who is likely to become a party to litigation) prior to the seek orders limiting the scope of the disclosure of documents for [email protected] commencement of proceedings and/or for an order for reasons such as proportionality of costs, relevance and so on. Northern Ireland Are parties to litigation required to disclose documents? Are there any exceptions when a document can be parties in the proceedings and, in our experience, the Court may Yes. The process is known as Discovery and documents are withheld from disclosure? order that certain persons or parties be entitled to view the unredacted content, often with solicitor undertakings provided made available to opposing parties for Inspection. Parties are Yes. Much like in other Common Law jurisdictions, documents in order to protect the confidentiality. This is sometimes obliged to discover documents which are relevant to the may be withheld if they are privileged. The most common forms described as a ‘confidentiality ring’. litigation and which are in their possession, custody or power.* of privilege are legal professional privilege (which is split into Parties are required to disclose: (i) relevant documents which legal advice privilege and litigation privilege) and without Can the right to withhold a document be lost and if may be made available for Inspection, (ii) relevant prejudice privilege which protects communications made in a so how? correspondence or documents which are not available for genuine attempt to settle a dispute. Inspection as they are privileged, and (iii) relevant documents Yes. Privilege can be lost by express or implied waiver or if the which are no longer in the possession, custody or control of that Would documents between a lawyer and a client fall document is no longer confidential. In addition, documents party. within such an exception? If so, what is the legal test? made to further illegality are not protected. *The ‘Peruvian Guano’ case continues to govern the definition of ‘relevant’ for Most likely yes. Documents between a lawyer and a client would Do regulators and investigative bodies respect the the purposes of Discovery in Northern Irish proceedings. likely fall within the legal advice privilege category even where no concept of privilege? litigation is in existence or contemplated. The document must be Yes. Privilege will be a defense to a regulator’s demand for What is a ‘document’ for the purposes of that process? made in confidence for the purpose of giving or receiving legal documents under its statutory powers, unless the statute advice. Drafts of documents are captured within this heading of There is no definition of ‘document’ provided in The Rules of the expressly or by necessary implication overrides privilege. privilege. Only documents between the lawyer and individuals Court of Judicature (NI) 1980.
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