A tale of two emails: Disclosure of parts of privileged documents may result in a waiver
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Any redacted parts of a document cannot compromise the meaning of the whole document – otherwise a party might waive privilege over the entire document.
The Federal Court judgment of Gall v Domino's Pizza Enterprises Limited (No 3)  FCA 1330 handed down this week provides a cautionary tale of what can happen when you redact parts of privileged documents.
The two emails
The central dispute concerned whether Domino’s Pizza Enterprises Limited had underpaid its employees. This interlocutory judgment considered whether two emails were protected by legal professional privilege.
The first email was from General Counsel of Domino’s to a partner at an external law firm, which was partly redacted (First Email). The First Email was a record of the General Counsel’s instructions to the partner. The second email was a response from the partner to the General Counsel (Second Email).
Justice Colvin emphasised that a party cannot safely disclose privileged material if any redaction renders the meaning of the disclosed portions unclear. After personally viewing the two emails, Justice Colvin concluded that the unredacted parts of the First Email were apt to cause the reader to form an incorrect or incomplete impression as to what was being said at the beginning of the First Email. He concluded that in the circumstances there was inconsistency between Domino’s treatment of the First Email and the Second Email: Domino’s tried to rely on the unredacted portion of the First Email, while simultaneously asserting privilege over the balance of the First Email and the entirety of the Second Email.
Justice Colvin found that Domino’s had waived privilege over the entirety of the First Email and the Second Email on the basis that the Second Email was a response to the First Email which itself was necessary to place the unredacted part of the First Email in context.
It is critical that any redacted parts of a document do not compromise the meaning of the whole document otherwise a party might waive privilege over the entire document. Careful consideration of any partial redactions of documents is required. This is especially so when other documents might shed light on the purpose or context of the redacted material. Surrounding documents such as other emails in the chain or supplementary material must be carefully examined.
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