Can privileged material be shared with others without loss of privilege?

English law

  • It may be necessary to disseminate legal advice beyond the “client group” within a company in order for it to be discussed further or for action points to be carried out. This is possible, but care must be taken to ensure that the advice is not disseminated to more people than is necessary. The danger of disseminating the advice too widely is that confidentiality, which is an essential element of privilege, may be lost and the privilege waived.
  • One option, when disseminating legal advice within a corporate entity, is to explain that the advice is confidential and privileged, should be treated with confidence and not be circulated any further, and is provided expressly without waiver of privilege. Unless the sender is an in-house lawyer giving legal advice, so far as possible the sender should refrain from providing any written commentary on the advice. While not determinative, marking documents as privileged and confidential and not for onward distribution can assist in maintaining privilege and at least shows that the issue of privilege has been considered, and may help to avoid accidental disclosure.
  • The same risks arise when circulating legal advice to third parties outside the corporate client. In addition to the above safeguards, it will be prudent to specify the limited purpose for which the privileged document is being disclosed, and to obtain express agreement on preserving confidentiality and privilege from the parties to whom disclosure is made. This should assist in countering any allegation that privilege has been waived as against third parties.
  • As a general matter, it is prudent to avoid, as far as possible, the transmission of particularly sensitive information by email as it is more difficult to control the limits of distribution. IT safeguards should be put in place to ensure that risks are minimised.

US law

  • As is almost always the case, the law varies among US jurisdictions and should be reviewed carefully prior to any circulation of privileged information.
  • As a general rule, sharing information with experts, including accountants, who are retained by in-house or external counsel during the course of litigation or an investigation may be protected by the attorney-client privilege and/or the work product doctrine.
  • An important concept to be aware of under US law is the concept of subject matter waiver of privileged information. Under the federal rules of evidence and corresponding state rules of evidence, the waiver of privilege as to one document can constitute waiver of privilege as to the subject matter contained in that document. The three factors generally considered by courts in making that determination are whether:
    • the waiver was intentional;
      the disclosed and undisclosed information concern the same subject matter; and
    • the disclosed and undisclosed information ought in fairness be considered together.
  • Note that some US jurisdictions interpret the scope of the waiver (i.e., the subject matter potentially waived) far more broadly than others.