The maintenance of a robust and effective legal system depends, in a large part, on litigants being completely open and forthright with their legal advisors without fear of sensitive information falling into the hands of opponents. This is rationale offered for the existence of what is known as litigation privilege. It maintains that communications passing between a litigant and their legal advisors are effectively ‘carved out’ of the overarching obligation to disclose all of the documents in their possession that are relevant to a fact that is in issue in the litigation.
However, the exception does not allow a party to completely conceal documents that are the subject of the privilege. In all jurisdictions, parties are required to identify them by a brief description and date and then openly claim that the document is privileged so that the other party has the opportunity to object and seek the intervention of the Court if it sees fit.
Privilege extends to more than just documents, however in the case of documents it is considered privileged if it was prepared for the dominant purpose of instructing a lawyer to prosecute or defend proceedings and extends to proceedings that are contemplated but not yet in existence.