High Court rules on inadvertent disclosure of privileged material in discovery

The High Court has made clear that inadvertent disclosure of privileged material does not amount to a waiver, where it occurs in a court-ordered process and is responded to promptly.

In the high-pressure context of litigation, errors can occur, but now the High Court has ruled on whether a party can undo an inadvertent disclosure of privileged material made during discovery.

High Court decision on privilege

The High Court has handed down a decision which took a pragmatic approach to dealing with inadvertent disclosure by ordering the return of the privileged documents. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, the High Court made it clear that the pursuit of "satellite interlocutory proceedings" of the kind before it was a distraction from resolving the real issues in dispute between the parties, which also incurred considerable costs and squandered the resources of the courts.

Documents produced during discovery

The parties had been ordered to give verified, general discovery in the proceedings. After the appellants served their verified Lists of Documents and disks on the respondents, some correspondence was exchanged between their respective solicitors. The upshot of this...