The Law Society Gazette carries a brief report headed Email attachments not covered by legal privilege, court clarifies. The parties were Frasers Group Pls (formerly Sports Direct International plc) v The Financial Reporting Council Ltd, and the court was the UK Supreme Court. Legal Futures writes about it here with the title Email attachments are not privileged just because message is.
The issue, as described by the Gazette was “whether an email with attachments should be treated as a single communication for the purposes of [legal professional privilege], and so if the email was privileged, whether the attachments were also to be treated in the same way”.
The court refused permission to appeal because the application disclosed no arguable point of law. Barrister Tom Bell of Hardwicke was quick to observe on Twitter that “the SC refusing permission to appeal on proposition X doesn’t in any way equate to it “effectively deciding” proposition X”.
Privilege is not really my subject, so I am glad to be excused from any deep analysis of this point. The reason I retweeted the Legal Futures report was to remind discovery people (and particularly reviewers) that block decisions about privilege (or relevance to any particular issue) are tempting but bring some risk. Privileged documents in a privileged email? Non-privileged documents in a privileged email? Privileged documents in a non-privileged email? A good reviewer will pause. Another, on Friday afternoon with a deadline approaching, may not pause.
On Twitter, the subject moved on to whether the privilege rules about complete documents are the same in different forums (within the UK, that is, never mind other jurisdictions) and on into questions about parts of documents in an age where it is possible to isolate sections of documents.
All interesting and important, and well beyond the narrow point which I had in mind – beware of block decisions about privilege in the hands of reviewers who may not be alert to the complexity involved, and who may not be backed by the QA processes which you would expect at the more sophisticated organisations.