The Defence Brief That Arrived by Mistake
You act for Northline Fabricating in a $1.2M breach of supply contract action. Two days before discoveries, defence counsel emails you a zip file labelled 'Defence Document Brief – FINAL.' Alongside the pleadings is a memo from the defendant's in-house counsel to its CEO, headed 'Privileged & Confidential – prepared in anticipation of litigation,' assessing the weakness of the defendant's own delay-clause position. It contains one line: 'we knew by March 3 the delivery date could not be met.' No privilege log was served. Nothing on the memo says it was sent in error, and opposing counsel has not followed up. Your client's CEO has not been told.
1. What must you do on opening the file?
Read the worked answer
Stop reading the moment you realise what it is and notify opposing counsel in writing the same day.
- Do not forward it internally, do not print it into your file, do not discuss its contents with the client, and do not build a discovery plan around it.
- Tell defence counsel what arrived, that you have not reviewed it further, and ask for instructions: return, delete, or hold pending agreement. Confirm the position in writing.
- Preserve the original email and your note of when you stopped reading. If the dispute later becomes a motion, you need a clean record of your conduct.
- Tell your client only that privileged material was received in error and has been returned. The client is entitled to know of significant developments, but not to the contents.
The governing idea is that you must not gain an advantage from an obvious error. Candour to opposing counsel and integrity are engaged, not just privilege.
2. Your CEO asks why you are not using the memo. Can it be used at discoveries or trial, or put to the CEO in cross-examination?
Read the worked answer
No. Privilege is not waived by inadvertent disclosure; the question is whether the privilege holder took reasonable steps to protect the information and whether it would be unfair to the holder to find waiver. A wrongly addressed zip file does not meet that test, and a court will not let you keep the benefit of it.
Using it - even obliquely, by asking questions that only make sense if you know the March 3 date - is the practical equivalent of using the document, and will be treated as sharp practice.
What you can do is pursue the same fact legitimately. The admission suggests documentary and human sources exist: production requests for delivery-schedule records, a request to admit, examination of the CEO and the operations staff, and a notice to admit the March 3 date. If those routes produce the fact independently, you have it cleanly.
If you genuinely believe the memo is not privileged - for example it is a business record merely copied to counsel - do not act unilaterally. Seek the court's directions on a without-prejudice basis.
3. Defence counsel replies: 'Just delete it, and please don't mention it to the court or your client.' How do you respond?
Read the worked answer
Agree to the deletion and get it in writing, but do not accept the second half uncritically.
- Deletion. If the memo has not been made part of any record and you have not used it, returning and destroying it, confirmed by email, is the correct outcome. Confirm what you will delete and that no copies exist.
- 'Don't tell the court.' There is nothing to tell the court at this stage, because the document has not affected any proceeding. But you cannot promise silence forever: if the material later surfaces in the record, or if your client's case comes to depend on a fact only the memo reveals, you must not mislead the tribunal about how you came by anything.
- Your client. You do not need the CEO's consent to return it, but you should record that you received and returned privileged material, so nobody later thinks you sat on a useful document.
- Screening. You cannot un-know what you read. Note it, quarantine it, and ensure no one on the file uses it. If the knowledge later makes it impossible to run the case fairly, consider whether you must be removed.
Keep the correspondence - it is your best evidence if opposing counsel later complains about your conduct.