Risks In Accidentally Disclosing Privileged Documents

A recent decision has highlighted the risks of inadvertently disclosing privileged documents to the other side. Even though it was accepted by both parties that the document was privileged and was disclosed by mistake, the court was unsympathetic and held that privilege had been waived since the mistake was not obvious to the receiving party.

The decision provides a timely reminder that a party who has mistakenly included a privileged document within their disclosure cannot expect the court to come to their rescue and uphold that privilege - unless it was very obvious that a mistake had been made in disclosing the document.

The claimant sought an order preventing further use of a document in patent proceedings on the grounds that it was a privileged document disclosed by mistake. However, in dismissing the application, the court held: