Any recorded communication (for example: e-mails, taped phone conversations (including voicemails), letters, memoranda, computer records etc) may have to be produced to the other party in a subsequent dispute/legal proceedings if the record is relevant to the proceedings. One exception is where the record is privileged. Privilege can protect confidential communications between lawyers (in-house or external) and clients where the purpose of the communication is to seek/obtain legal advice (legal advice privilege). It will also protect some confidential communications with third parties, where there are actual or likely proceedings (litigation privilege). The flowchart below and the rules on the back of this document highlight the key points from an English law perspective, including some common pitfalls and how to avoid them. However, privilege is a complex area of the law and you should therefore seek specific guidance from your in-house counsel or external lawyers in any given situation.
Click here to view flow chart.
Click here to view ten rules for retaining privilege.