A Guide to Litigation Privilege
Litigation privilege
Litigation privilege is a legal principle that protects certain communications and documents created or exchanged in the context of pending or anticipated litigation from being disclosed to the other party or in court. This privilege is designed to promote candid discussions and thorough preparation by parties and their legal counsel without the fear that these communications will later be used against them.
Key aspects of litigation privilege include:
1. Scope of Protection:
a. It typically covers communications between a client and their attorney, between the client and third parties, and between the attorney and third parties.
b. It also applies to documents and other materials created with the dominant purpose of use in the litigation process.
2. Conditions for Application:
a. There must be existing or reasonably contemplated litigation.
b. The communications or documents must be created for the dominant purpose of the litigation.
3. Duration:
a. The privilege generally lasts as long as the litigation is ongoing, and in some jurisdictions, it may continue even after the litigation concludes.
4. Exceptions:
a. The privilege may not apply if the communication is made in furtherance of a crime or fraud.
b. It may also be waived if the privileged communication or document is shared with a third party who is not involved in the litigation or if it is disclosed in a manner inconsistent with maintaining confidentiality.
Litigation privilege is a crucial component of the legal process, ensuring that parties can prepare their cases effectively and communicate openly with their legal counsel without fear of prejudicing their positions.
