It is settled law that pre-existing documents do not become privileged merely because they are submitted to lawyers for the purpose of advice or litigation, but do such documents become privileged when they are annotated or highlighted or underlined by counsel?
This question was addressed by the High Court in the recent case of Vivian Imerman vs (1) Robert Tchenguiz (2) Vincent Tchenguiz (3) Tim Mclean (4) Nouri Obayda and (5) Sarosh Zaiwalla [2009] EWHC 2902 (QB).
The Facts
Defendants had been ordered to deliver up to the Claimant hard copies of documents containing confidential information and to permanently delete from their computer systems all other copies, with the exception of privileged material. Privileged material was to have been destroyed or handed over to the Defendants' solicitors whereupon it would be placed into secure storage.
In spite of this order, no delivery up occurred. The Claimant duly sought an order that, unless the Defendants complied, the Defence should be struck out and they should not be allowed to participate in the detailed assessments of the Claimant's costs of the summary judgment application.
The key issue addressed by the Court was with respect to those documents held by the Defendants' Counsel, which, the Defendants argued, were privileged because they had originally been provided as part of Counsel's instructions.
The Court held that where such documents consisted of pre-existing documents, the only scope for the privilege exemption to apply would be in relation to actual annotations made by Counsel. As such, the appropriate modus operandi was for such documents to be returned to the Claimant with the annotations redacted.
The Defendants, however, argued that annotations should include 'underlining or highlighting'. The Court held that 'underlining or highlighting' does not in itself give rise to privilege. Citing Lyell v Kennedy (No 3) (1884) LR 27 Ch D 1, the Court considered the appropriate test to be whether or not markings would "give a clue" to the trend of advice being proffered and, save in very specific circumstances, one would not be able to draw any inference as to the trend of advice from mere 'underlining or highlighting'.
The Defendants further argued that because some pages had not been annotated by Counsel, the absence of annotations would give a clue as to the significance being given to such pages. The Court rejected this argument – an unmarked page cannot reveal anything to a reader other than its contents. Unmarked pages could only be considered privileged if there had been a process of selection with regard to these documents (e.g. if they had been selected from a public register). The documents in this case did not come into the Defendants' possession by a process of selection.
The Court duly ordered the delivery up, but did not grant the Unless Order due to the great amount of material involved.
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