Be Careful What You Waive: Partial Disclosure Of Privileged Documents Can Create Unintended Consequences

Litigation routinely involves thousands or even tens of thousands of documents. Expensive and time-consuming disputes over what must be disclosed and what is protected by privilege are commonplace. Faced with these disputes, selectively disclosing otherwise harmless privileged documents may appear inexpensive and expedient. But caution is needed – you may be giving up more than you bargained for.

What is "privilege"?

Privilege protects documents from disclosure during litigation, creating a "zone of privacy" for certain activities, relationships or individuals. It takes many forms, but the most potent is the privilege between solicitor and client. Solicitor-client privilege protects all interactions between clients and their lawyers from disclosure when the lawyer is providing legal advice or otherwise acting as a lawyer, rather than as a business advisor or in another non-legal capacity.