Privilege of documents stored on employer's computers/waiver issues

It is a pre-condition to a claim for privilege that the documents in question are confidential. In Shepherd v Fox Williams, confidentiality was not lost in respect of documents sent to someone's personal email address which were opened and then stored on her employer's server, as the sender had not consented to a waiver of privilege.

However, the position was held to be different in this case, where an employee (the claimant) had created and saved a word document on his employer's computer (before emailing it to his personal email address). The claimant had signed a copy of his employer's IT policy which made it clear that documents sent and received on its IT system belonged to the employer. It was also held that the document had been created in the course of the claimant's employment. It was impossible that the claimant had any reasonable expectation of privacy as regards the preparation of the documents, and he should have been aware that documents saved to a folder on one drive of the employer's central servers were stored centrally, and the documents were also not password protected. The judge summarised that the document "was never confidential as against [the employer] or, if it was, it lost its confidentiality when it was processed on the defendant's IT system".

There was also an issue in the case about whether the claimant had waived privilege in certain emails by "deploying" material in court. Garnham J held that one email was "deployed" in a witness statement in which the claimant described re-formatting a document: "He is describing the contents of the email in order to make good his case that he did not work on it at the defendant's premises. In my judgment he is "deploying" the contents of the email and in those circumstances he has waived privilege in that email". However, the content of another was not deployed where the document was referred to simply as a part of the narrative.