Can legal privilege be waived by using cloud based document hosting?

It is very common nowadays for businesses to store documents online using document hosting applications such as Dropbox or Google Documents that allow multiple parties to read, open and modify documents from any location in the world.  While using these cloud storage facilities is very convenient, it may pose a problem where a person wants to claim legal professional privilege over the documents they contain.

What is legal professional privilege?

Legal professional privilege protects confidential communications between a lawyer their client.  This principle is one of the core foundations of the lawyer/client relationship.   Where privilege attaches to a document, a party is allowed to withhold disclosure of that document, despite its apparent relevance on the grounds that it was “privileged”.

When does legal professional privilege attach to a document?

Legal professional privilege will generally attach to communication between a lawyer and a client made for the dominant purpose of:

  • seeking advice or giving legal advice; or
  • using, or obtaining material for use in legal proceedings that have commenced or are reasonably anticipated to commence.[1]

Privilege will also attach to communications between a lawyer and third parties made for the dominant purpose of using, or obtaining material for use in legal proceedings that have commenced or are reasonably anticipated to commence.[2]

When does a person need to disclose a privileged document?

A person will be unable to rely on legal professional privilege where the privilege has been “waived” by them for some reason.   A person will waive privilege where they act in a way which is inconsistent with the confidentiality to which the privilege is designed to protect.[3]

Whether a document is capable of attracting legal professional privilege, and whether that privilege has been subsequently waived can be a complex issue requiring an objective view.  With this in mind, the question becomes whether cloud based document hosting applications such as Google Documents waive legal professional privilege in the documents they contain?

Dropbox and Google Documents

Dropbox and Google Documents are two (2) of the most popular document hosting applications globally.  These applications allow users to upload documents to the Dropbox or Google Documents ‘cloud’ and access, modify and even share the documents with others.

The terms and Conditions of Dropbox and Google Documents provide that while the documents remain the property of the party who uploaded them, Dropbox and Google Documents are allowed access to the files and undertake tasks such as backing up, storing and scanning the documents.

As set out above, the purpose of legal professional privilege is to keep confidential communications and documents confidential.   To act in a manner inconsistent with this principle is to waive the privilege.  As the terms and conditions of Dropbox and Google Documents allow these document hosting organisations to access the documents, an argument may be made that by allowing parties not connected with the legal proceedings access to the documents, the party has waived the privilege in those documents.

Another consideration when using a document hosting application is the access provided to another person not connected with the provision of legal advice.  Dropbox and Google Documents allow parties to “share” the documents and files with others.  Where a party who is not a legal representative or a third party engaged for the purpose of providing the legal advice is allowed access to the documents, it is clear that this would be a waiver of privilege.

Takeaways

It is generally in the best interests of the client to keep the communications to which legal professional privilege has attached, confidential.  As document hosting applications become common place in the workplace and in people’s personal lives, clients and legal professionals must be cognisant of the potential issues for waiving legal professional privilege.

Further references

Legislation

Evidence Act 1995 (Cth)

Related articles by Dundas Lawyers

Without Prejudice privilege

Categories of discovery – Federal Court

Discovery in the Federal Court of Australia

e-Signatures – legally binding on companies?

What is your duty of disclosure?

Further information

If you need assistance regarding legal professional privilege or any civil litigation, please telephone me for an obligation free and confidential discussion.

 

Franchising lawyersMalcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 | Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

 

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Evidence Act 1995 (Cth), section 119.

[2] Evidence Act 1995 (Cth), section 119.

[3] Evidence Act 1995 (Cth), section 122.

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