Adv. Liron Elias, Head of Med Mal Team Levitan, Sharon & Co.

A recurring issue in the law of evidence concerns privileged documents that have found their way into the hands of a third party without the knowledge or consent of the privilege holder. The central question is whether privileged documents that have been leaked or otherwise obtained by a third party may be used in civil proceedings.

This question has become increasingly significant in malpractice litigation, especially in the age of digital communication and electronic document storage, both of which are vulnerable to hacking.

Recent Israeli case law has provided a clear answer to this question. Both the Supreme Court and the District Court have affirmed that privileged documents do not lose their protected status merely because they have been leaked outside the original attorney-client relationship.

The leading authority is LCA 6171/17 Anonymous v. Meuhedet Health Fund, decided by the Supreme Court in 2017. During medical malpractice proceedings, a journalist obtained an internal risk assessment prepared by the respondent’s counsel. The document was later published, and the applicants sought to submit it as evidence.

The Supreme Court rejected the applicants’ attempt, holding that attorney-client privilege belongs to the client and is not waived merely because the document was disclosed without the client’s consent.

The Court emphasized that legal privilege protects not only the client’s private interests, but also the broader public interest in candid and effective legal representation. Privilege is not confined to documents physically held by the lawyer or the client. Rather, it attaches to the protected communication itself and therefore “runs with the document,” even when it reaches a third party without the client’s consent.

This approach was reaffirmed in Civil Case (Nof HaGalil-Nazareth District Court) 75969-09-25, Matzarwa v. Meir Hospital et al., decided on June 14, 2026. That case arose from a medical malpractice claim that ended in a court-approved settlement in 2015.

Nearly a decade later, the plaintiffs claimed that the defendants’ internal risk assessments had reached them through a third party, who claimed he had received them from an anonymous source. They argued that the documents showed the defendants had internal knowledge of negligence despite denying liability in the original proceedings. They therefore sought to reopen the matter on grounds of fraud.

The District Court dismissed the claim. It held that the way the documents reached the plaintiffs was irrelevant: even if the plaintiffs themselves had done nothing improper, the documents remained privileged. The Court found that, as internal legal evaluations, litigation risk assessments, settlement recommendations, and communications made in preparation for litigation, the documents are protected by both attorney-client privilege and litigation privilege and are therefore inadmissible.

The Court also rejected the argument that the internal assessments constituted proof of fraud. Such materials reflect ordinary legal risk analysis and litigation strategy, not admissions of liability or deceit. Generalized allegations of fraud are insufficient to displace privilege absent a recognized exception. The Court emphasized that the original proceedings had ended in a settlement agreement approved by a court and refused to allow the matter to be reopened.

The District Court’s conclusion is consistent with the precedent laid down by the Supreme Court: judicial awareness of privileged information does not by itself make the underlying document admissible.

These decisions establish a clear rule in Israeli civil litigation:

Legal privilege is not a technical rule of convenience. It is a fundamental condition for candid legal advice and fair litigation preparation.