Pooja Shrivastava

Documents for Evidence

Priviledged And Non-Priviledged Document:

Documents
The definition of ‘document’ doesn’t only include paper or original documents. It
includes everything upon which information of any description is recorded. This shall
also include e-data’s, i.e. databases, e-mails (including deleted e-mails), electronic
personal organizers, file servers, back- up tapes and hard drives as well as hard-copy
correspondence, faxes, memoranda, reports, photographs, plans, diaries and board
minutes.

It is enrooted in almost every e- document is the history of the document itself (i.e.
metadata such as original author, creation date, hidden notes, amendments, details of who
is blind copied in to emails). Opening and printing of a document can change the
metadata and this may render Priviledged and/or confidential documents disclosable.
However software technology exists which enables electronic data to be retrieved without
damaging its integrity and further it can be automatically organized in a way allowing
lawyers to manage the Non-Priviledged Document process in an efficient and cost
effective manner. If there are electronic documents that may be relevant to the dispute,
the disclosure depends on its nature whether it is Privilege and Non-Priviledged
Document.

Privilege is a word which describs a number of rules excluding evidence that would be
adverse to a fundamental principle or relationship if it were disclosed.The epitome for
this is soliciter-client priviledged under US legal system.This is to protect the
communication between soliciter and client and maintain the confidientiality . The
rudimentary reason for it is to make client free and can freely communicate lawyer about
the case.Second good example is self incrimination in other proceedings to protect
communicatins made in course of negotiation to settle a legal dispute. Other examples
arepublic interest Priviledged, marital priviledge, medical professional priviledge.

In law it is generally a right of the party to prevent evidence from being introduced in the
form of testimonyfrom the person to whom the priviledge runs.

Non-Priviledged Document is a part of the litigation process when each party is

required to disclose to the other documents that are relevant to the issues in dispute.
Mutual Non-Priviledged Document and inspection is intended to ensure that the parties
‘put their cards on the table’ at an early stage in respect of documentary evidence.

Facts about Non-Priviledged Document

The presentation of Non-Priviledged Document shall only on
 a court order
 the parties' agreement.

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The customary court order is called ‘standard Non-Priviledged Document’, but the
limit depends upon the party agreement. Standard Non-Priviledged Document
requires a party to disclose:
 Documents on which it relies; and
 Documents which:-
1. affect its own case adversely;
2. (ii) affect the other party's case adversely;
3. (iii) support the other party's case; and
 Documents which, in particular types of claims are specified by the court.
The disclosure of the document depends upon issues raised by the party’s statement. The
obligation to disclose documents includes those that are within a party's control. ‘Control’
extends to the physical possession, of the documents by the party. This physical
possession includes a right to possession, or to inspect or to take copies. Each party is
required to make a reasonable and proportionate search for documents covered by
standard Non-Priviledged Document.

The List of Documents

Non-Priviledged Document is made by service of a list of the documents. The List
follows a standard form and must identify and describe the party's documents in a
convenient and concise manner.
The List is also required to identify separately those documents which are no longer in
the party's control and which cannot, therefore, be inspected, and those documents in
respect of which a right to refuse inspection is claimed. The right or duty under which
inspection of a disclosed document is refused, usually legal professional privilege, must
also be asserted in the List.

Fact about Priviledged Document

Priviledged documents do not have to be disclosed; however confidential documents
which are relevant will have to be disclosed if they are not covered by privilege
A Priviledged document need not be shown to the other side. The relevant types of
privilege are likely to be ‘legal advice privilege’ and ‘litigation privilege’.
Legal advice privilege attaches to confidential communications between a lawyer and
his client (also known as soliciter-client priviledged) provided that the communications
are for the dominant purpose of seeking and receiving legal advice. This will cover
presentational or commercial or strategic advice provided that it relates to a client's legal
rights and obligations. It will not apply to advice, for example, of a purely strategic or
commercial nature. It does not apply to communications with third parties.

Litigation privilege attaches to documents that were created for the purpose of actual
or pending litigation. It includes document prepared by employees and third parties.

It is important to understand the distinction between confidential and Priviledged

documents. The fact that a document is confidential does not mean that it is Priviledged.
Not all communications between a client and its lawyers are Priviledged notwithstanding
that they may be of a confidential nature. However privilege will only attach to

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confidential documents and therefore once a document has lost its confidentiality, it loses
its privilege - this makes it important to maintain the confidentiality in all Priviledged
documents.