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This article is authored by Anvita Bhardwaj, currently pursuing B.A.LLB (Hons) from Symbiosis Law School, Noida. This article will give you in-depth knowledge about Privileged Documents under Code of Civil Procedure, 1980

Introduction 

The existence of privileged documents stems from the principle of an effect and a fair trial. Communication that is done with your lawyer via e-mail or a letter you receive from him is an example of a privileged document. The reason behind the existing privilege is obvious; if access is given to the opposite party, it would compromise the trial by giving an unfair advantage to the opposition which would violate the principles of natural justice. Moreover, if advice sought through written communication becomes admissible in Courts, it would make people rely on only oral communication with their lawyers. This could further lead to misunderstanding or missing out on crucial details of the case. If privilege did not exist, people would be deprived of legal assistance. No one would dare to share the candour details with full transparency with their counsel. 

This brings us to the question, “What is privilege?” Privilege is a legal right; one that guarantees a person that he may resist compulsory disclosure of information or documents. Privileged documents are not subject to disclosure to the other party, neither before nor after the commencement of the trial. This is done to ensure a fair trial. The judicial discretion or the opponent cannot force you to disclose the information in these documents no matter how crucial or important that information may be to the case. The legal right safeguards the party from being forced to disclose the information. One can, however, choose to waive his privilege and present the documents on his own accord. 

All privileged documents are confidential but not all confidential documents are privilege documents. 

Nature, scope and objective 

The Indian Evidence Act, 1872 mentions the legal provisions that create the right to privilege. Under Section 126, Section 127, Section 128 and Section 129 Attorney-Client privilege is safeguarded. The privilege continues beyond the employment of the legal attorney. The privileged documents are confidential in nature. The privilege attached to them is accessed as a legal right. In the coating of privilege, it is considered a negative right. No judicial discretion applies to this right. One cannot be forced by law to waive his privilege. All the documents, which are not mandated by law in any way, may be eligible to be privileged. The party that wants to claim such privilege needs to submit an application for the same in the court. 

It has a limited scope. The privilege applies to a limited number of documents of a certain nature. This means that privilege cannot apply to all documents related to the case. It needs to be applied in accordance with the codified law existing (Indian Evidence Act, 1872). 

Objectives of Privileged Documents

  • It ensures a free and fair trial that adheres with the principles of natural justice. 
  • It prevents one party to take undue advantage of another by maintaining the confidentiality of documents. 
  • It ensures the delivery of justice. 
  • It provides an equal platform for both parties. This helps them make uninfluenced and individualistic arguments. 

How can one tell if a document is privileged? 

Generally, it is believed that anything created after the commencement of litigation would automatically become a privileged document. Similarly, anything created before the litigation commences is not a privileged document. However, this is not true for all instances. The real test for a document to be qualified as a privileged document is if the reason it came into existence is due to the scrutiny of litigation. 

Let us take a few illustrations to understand the same 

Illustration 1: You click a photograph of something as you are thinking you can utilize it to commence litigation against someone. Now, though this picture is taken before the commencement of the litigation process it will still be counted as a privileged document. 

Illustration 2: Let’s take an example that someone damages the wall of your residence. You hire a surveyor to create a report for assessment of damage and reimbursement of expenses as you wish to submit the same in a court. That report will be considered as a privileged document. The reason for the same is that its creation by the surveyor is done in contemplation of litigation. Now, similarly, if you ask a builder to provide you with a quotation for the repair, that document will not be considered a privileged document. This is because, for the builder, you are a mere customer. 

Therefore, one should keep in mind that what matters is, “Why did the creator of the document create it in the first place?” This is the only way to determine which documents must be qualified as privileged. 

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Are attachments to emails privileged? 

Does client privilege protect the discovery of documents sent as email attachments where the email communication itself is privileged? No, the same privilege that exists between the exchanges of e-mails is not extended to attachments. The attorney-client privilege protects the e-mails sent by clients to their attorneys by keeping them confidential. However, many lawyers assume that the same privilege extends to attachments of emails as well since they are attached to the parent email. Courts are challenging these assumptions and have held that the attachments must meet the requirements of a privileged document individually in order to obtain the right to privilege.

It is also observed by the court that once that e-mail communication has been sent to a third party, the privilege of that document is waived off. The understanding this provides us is that courts are scrutinizing attachments to determine whether they warrant privilege independent of their parent e-mails mentioned as the cover letter. To improve the chances of receiving the privilege, one should name the attachment as “Confidential” or “Protected by Attorney-Client Privilege”. It should also be stated that the attachment is sent to seek legal advice and should not be sent to any other party without the consent of the sender. 

The difference between privilege and confidential? 

Many individuals treat the idea of privilege and confidentiality as indistinguishable. While they are similar, they are not the same thing. 

 

Confidentiality

Privilege

Nature

Confidentiality is a duty. 

It is an affirmative requirement 

that compels an attorney to act in a certain way.

Privilege is an exemption from duty.

Privilege is an exemption from duty. 

In general, people have a duty to testify when they are compelled to do so by a government entity. 

The attorney-client privilege exempts the lawyer from having to do so

Scope

Confidentiality applies to

practically everything about the

interactions between a client

and an attorney.

Privilege only applies to any communications 

between the attorney and the client that is given to get legal representation.

To identify privilege you can remember the perks associated with it. This will further help you in distinguishing between confidentiality and privilege: 

  • Privilege grants immunity from the disclosure of documents. 
  • Privilege is in your hands. You can choose to waive it off or retain it. 
  • Privilege makes sure that the parties can effectively use the legal confidential documents for the effective presentation of the case on its concerned merits from each side, respectively, without having the consciousness of the fact that the other party may find a pre-counter argument for their affirmations. 

The historical legacy of privileged documents 

The concept of privilege originated and existed in English Law, wherein certain broad and open- ended principles were applied on the mere basis of judicial discretion. This was regarding the voluntary non-disclosure of a few documents to the other party before the commencement of trial. These documents needed to fulfil a criterion iterated by the judges. Soon, this principle was adopted for civil cases in England. With a few changes, India also adopted this legal concept. 

What are the exceptions? 

Section 126 of the Indian Evidence Act forbids any barrister, attorney, pleader or “Vakil” (lawyer) from disclosing any communication made to him by his client (or someone on behalf of his client). He cannot disclose any advice sought by his client. He cannot disclose the contents of documents shared with him shared under the course of his employment. Any communication made with a lawyer before actually appointing him is not protected under this Section. 

There are certain exceptions against which immunity of privilege is not provided. 

  • Communication made in furtherance of illegal acts. For example, Sam asks his lawyer that he has hidden the body of a girl he murdered in his bed box, how should he get rid of it. This communication is not privileged. 
  • Facts such observed that prove the commitment of crime or fraud since the beginning of the employment. 
  • The protection/privilege offered in this section cannot be availed against an order to produce documents under Section 91(3) of CPC. 
  • If such a situation arises, then, documents should be produced under Section 162 of the Indian Evidence Act. 
  • If the document loses its confidentiality. 
  • It only extends to attorney-clients and therefore, advice sought in the capacity of a friend will not be subject to privilege. 

Important case laws 

Calcraft v. Guest 

In this case, the principle of “Once privileged, always privileged” came into light. However, once the material has got out, it should not be kept out of court on account of its confidential nature any more than would any other confidential matter. 

D. Veerasekaran vs State Of Tamil Nadu 

In this case, an unsigned, undated letter was found. This letter was written by the advocate to the accused. The advocate, in the third paragraph, had abetted the accused terrorist to abscond as it was the only way he could save himself from the clutches of law. This document was considered to be a privileged document as it was a communication between attorney-client and hence, was inadmissible in Court. 

Gurunanak Provisions Stores vs Dulhonumal Savanmal 

This case law revolved around a forged promissory note. Gujarat High Court held that privilege can be abandoned when the client desires it. 

Maneka Gandhi v. Rani Jethmalani 

In this case, the Court observed that everyone has the right to a fair trial, and for obtaining such right one might need to seek help from an attorney. 

Rajesh Bhatia and Ors. vs G. Parimala

The grounds on which this protection can be claimed can be classified under the following main heads: 

  • Legal professional privilege; 
  • That production is contrary to public policy; 
  • That the documents in question may tend to criminate the party or his or her spouse; 
  • That the production is contrary to some statutory provision which imposes secrecy; 
  • That production is contrary to some express or implied agreement between the parties; and 
  • That production would, in the circumstances of the particular case, be oppressive. 

Conclusion 

After gaining the knowledge about all these facts one can clearly understand the importance of the concept of privilege for conducting a just and effective trial. If these provisions did not exist no man would come to the Court to seek redress or defend himself. A lawyer is trusted with sensitive information by his client. He cannot betray the trust of his client by disclosing any communications or documents shared with him under the course of employment. 

There are two main types of privilege protection under English and US law. Broadly, these protect communications between lawyer and client (attorney-client privilege under US law and legal advice privilege under English law) and documents prepared for litigation (the work product doctrine under US law and litigation privilege under English law). 

Even though the non-disclosure of documents due to privilege interferes with the operation of the truth, it is very vital in the field of law. The Constitution of India, under Article 20 (3), safeguards a person against self-incrimination. Since the spirit is embedded into our Constitution, it is only fair that legal provisions in favor of this exist. 


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