Legal professional privilege (LPP for short) is an essential aspect of the law, enabling lawyers and clients to communicate in confidence, without fear of information being disclosed to others or used in court without their consent.
It generally covers:
- documents and communications prepared for giving or receiving legal advice
- documents and communications prepared for actual or anticipated litigation.
For LPP to apply, a communication or contents of a document must be made in confidence in the first place. That confidence must then be maintained if the privilege is to remain in place.
LPP does not just cover lawyer-client communications. It may also cover material (such as reports) created by an expert, or ancillary documents such as letters between lawyer and expert, notes and memos taken during discussions with an expert witness, and draft reports.
However, exactly what is protected will vary depending on context.
At common law, privilege attaches to confidential communications only, not entire documents. If a document contains privileged communication, the communication is protected, but the rest of the document is not.
At common law, then, an expert's working notes would generally not be covered by LPP, as they would not expose confidential communications between lawyer and client.
Under the Evidence Act 1995, however, confidential documents created primarily to provide legal advice or services relating to current or anticipated litigation are covered. Generally, the Evidence Act applies to proceedings in state and federal courts (and before other tribunals required to apply the laws of evidence).
Under the Evidence Act, therefore, an expert's working notes could very well be protected.
Failure to understand this somewhat technical area of law can result in sensitive material contained in an expert's notes or draft reports, or communications with experts, being revealed at great cost to the affected party.
This point was clearly illustrated in Ghorbanzadeh v Western Sydney Local Health District.
Background
The plaintiff sued the Western Sydney Local Health District (LHD) alleging negligence during a difficult birth that caused her injury.
The LHD's solicitors instructed Dr Roach, a medico-legal expert, via letter enclosing hospital records, the statement of claim, and the report of the expert retained by the plaintiff. Dr Roach was instructed to review the brief of materials and discuss his opinion with the instructing solicitor.
After Dr Roach received the letter of instruction and brief of materials, he composed two pages of handwritten notes. He then had a phone conference with the LHD's solicitor in which he referred to his notes. The solicitor subsequently gave written legal advice to her client and included the information she had gleaned from the phone conference.
Dr Roach was then instructed to prepare a written report, which was served on the plaintiff's solicitors.
The plaintiff issued a subpoena to produce to Dr Roach. The handwritten notes were caught by the subpoena. The LHD claimed privilege.
The issues
Although the context was court proceedings, due to an exception in the Uniform Civil Procedure Rules, the Evidence Act 1995 didn't apply in this situation. Only communications and not documents might therefore be covered by LPP in this instance.
The plaintiff submitted that the handwritten notes were no more than a "piece of paper" and were not a communication.
The LHD said they had converted the handwritten notes into a communication, because Dr Roach stated that he used them as the basis for expressing his verbal opinion to the LHD's solicitor.
Judgment
The Court ruled that the document was not a communication, but merely a working note on which Dr Roach's discussion or opinion may have been based.
The Court cited Ryder v Frohlich [2005] NSWSC 1342 at [12]:
The point made here is that privilege can only attach to documents which embody communication between the expert and the litigant by whom the expert is retained (or the litigant's lawyer). A draft report prepared by the expert is not, of its nature, such a communication. It may be that the draft report is, in fact, given or sent by the expert to the litigant or the litigant's lawyer, but that does not change its character as something prepared by the expert which is not intended to be a means of communication with the litigant or lawyer.
On waiver, the Court commented:
Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to ..., at least if the appropriate inference to be drawn is that they were used in a way that could be said to 16 influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents.
The Court noted that Dr Roach did not say in his affidavit that the handwritten notes played no part in the formation of his opinion.
While the report Dr Roach ultimately produced was an answer to six specific questions, unlike the discussion during the phone conference, there was nothing to say the six questions did not cover material contained in the handwritten notes.
The notes were not privileged at common law.
What does this mean for draft reports?
Usually, draft reports attract privilege because they are prepared for the dominant purpose of providing legal advice or services to a client.
But if a draft report is created predominantly for preparing the final report itself, there may be no privilege at common law, as such a draft would be characterised merely as working notes.
Also, there will be a waiver of privilege if there is something in the f inal report that refers to earlier correspondence and material changes having been made to the draft report.
Final reports
Obviously, if a final report is served, thereby no longer maintaining confidentiality, privilege will have been waived.
If a final report is not served, then provided it was created for the dominant purpose of the provision of legal advice or in relation to anticipated or current litigation, it will be privileged.
However, there is no property in a witness, including an expert witness. So it is not unheard of for a plaintiff's expert to be subpoenaed and called by a defendant to give evidence, and vice versa.
In summary, legal advice is essential
The concept and application of the principles of legal professional privilege can be difficult and technical.
Getting it wrong where sensitive material is contained in expert's notes or draft reports, or in communications with experts, can be extremely damaging to a party's case.
Accordingly, engaging an expert to produce a report in connection with obtaining legal advice or litigation should be closely managed by legal advisers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.