A second Digicel judgment does not bear on the subject of e-disclosure, but relates to alleged waiver of privilege in documents containing legal advice. A mention of it here might forestall confusion on the part of those who turn up a Digicel judgment and are puzzled to find no reference to electronic disclosure.
I offered my excuses in a recent post (A round-up to catch up) for not providing all the hyperlinks to the conferences, companies and articles referred to in the article. It can double the usefulness of an article to include easy jumps to sources referred to; it can also substantially increase the time taken to finish off an article to find all the references and deal with the mechanics of effecting the links.
For English cases, I generally use the admirable British and Irish Legal Information Institute (BAILII) because it is available to all and has a simple, fast search mechanism. Although I refer frequently to Digicel (St Lucia) v Cable & Wireless and have innumerable places of my own to look it up, I find it easier to keep the BAILII search screen open and just type “Digicel” into the search box. That is how I discovered recently that there has been a second published judgment in that case. I draw it to your attention partly for its own sake and partly to save the rest of you from picking the wrong one as I nearly did. The judgment was delivered on 17 June and concerns a waiver of privilege point which came up on the 25th day of the trial.
I claim no particular expertise in the law of privilege and (don’t tell anybody this) often use the privilege sessions at conferences to go out for a smoke – I make no apology for this since some of my best contacts have been acquired that way. Every so often, however, I cannot escape, most recently because I was chairing the conference and my absence would probably have been noticed. I once did a video broadcast alongside a highly respected authority on the subject who said that he was always confident, when accepting invitations to speak, that an important new privilege case would come up just in time to provide him with something new to say, so there is obviously more of it about than I know of.
Cases about privilege, and particularly waiver of privilege, are very common in the US. A cynic (that’s me) might suggest that this is because US litigation lawyers will fight about anything (who goes through the court door first, who gets the big chair and the last chocolate biscuit at the meet and confer and so on) but in fact many of them derive logically from the great volumes which must be produced in a short time. They often turn into simple competence cases whose major point is not the rules of privilege but the lawyers’ failure either to conduct proper searches or to negotiate an effective claw-back agreement. I will not go into that here – if you are from the US, you will know the cases and if you are not, you will probably not be that interested (you would be wrong not to be interested but I will move on anyway).
The Digicel privilege case is not of that kind. It concerns the question whether a party who refers to legal advice as part of its case thereby waives privilege in that advice. The claimants sought disclosure of “documents constituting or evidencing legal advice” as to “the lawfulness or otherwise… of the defendants’ refusal or failure to commence negotiations” with the claimants who sought interconnection between the defendants’ telecommunications networks. The application was put like this:
“The ground for the application is that the defendants have waived privilege in such legal advice in order to advance their alleged defence that each of the defendants (through the individuals identified in the draft order attached) held an honest belief at the relevant time as to the lawfulness of their refusal or failure to commence negotiations or progress interconnection prior to the formal grant of a licence to the relevant claimant and/or their refusal or failure to order equipment required for interconnection prior to the signing and/or approval of an interconnection agreement between the relevant defendant and the relevant claimant.”
The claimants put their case in two ways, described as the “narrow submission” and the “broad submission”. The narrow submission was based on the argument that if witnesses justify their actions, and explain their contemporaneous state of mind, by reliance on legal advice, then they are effectively deploying some privileged material to advance their case and may be held to have waived privilege in it. The waiver may extend further in that “the party who makes a partial waiver of privileged material is not entitled to cherry-pick from the material so as to disclose and deploy the part of the material which suits him but to withhold other parts which might not suit”.
This line opens the door to arguments about the distinction between the contents of and the effect of a document. The claimant’s counsel said that it was “most unfair for the defendant to be able to give evidence as to the alleged beliefs on what is a matter of law and yet withhold disclosure of the legal advice they obviously received on that matter”.
The judge was again Mr Justice Morgan who brought the same clarity to this issue as he brought to the earlier application about disclosure. You get the feel of it from this passage:
I have three comments to make in relation to that submission. The first is that fairness is not the touchstone by which it is determined whether there has been a waiver of privilege….
Secondly, although the legal advice would be highly relevant to the fact-finding enquiry into the alleged beliefs and although it is therefore very tempting for the court to require the disclosure of that legal advice, I am only in a position to make an order which compels the defendants to do that which they do not wish to do if I can make such an order in accordance with legal principle. To order disclosure is tempting, but wrong.
Thirdly, in the case much relied upon by [the claimants…the judge] stressed that privilege was a very important matter and was not lightly to be overridden by an over-readiness on the part of a court to find a waiver of privilege.
His conclusion was that the references to the legal advice did not amount to a waiver of privilege in that advice. The broad submission, which focused on the alleged state of mind of the witnesses, proved no more persuasive, and the application was lost.
I had half hoped, when I first turned up this judgment, that it would have an e-disclosure angle, preferably derived from the fresh searches or the disclosure of backup tapes ordered in the first Digicel judgment. It concerns none of those things, yet earns its place in an e-disclosure commentary on two grounds: one is to head off potential confusion on the part of those who hear of Digicel in an e-disclosure context and are puzzled when they find no reference to e-disclosure; the other is to draw attention to the danger of over-simplified searches when looking for privileged material. These references in fact occurred in a witness statement and the claim to privilege was made knowingly and, as it turned out, correctly. One can envisage circumstances in which the underlying documents might have been weeded out completely by an over-broad search. That takes us back into the competence arena which is the subject matter of so many of the US cases.