CONFIDENTIAL COMMUNICATIONS WITH LEGAL ADVISORS

INTRODUCTION
The attorney-client privilege protects certain communications between attorney and client
from compelled disclosure. The project is a compendium of works of different authors on
different fields of client- attorney privilege in Evidence and Indian Evidence Act, 1872. We
begin with a historical note on this topic, continuing with the scope and nature, implications,
and exceptions on professional privilege with legal advisors a.k.a client- attorney privilege.
More is explained in Research methodology, where certain questions are placed, which are
answered by five authors. A brief case analysis is done by each of them, for the reader to get
a fine picture upon what is done in the project, and assist the justifications made by the
authors in the project. The Indian Evidence Act, 1872 has protects from disclosing legal
counsel, and it has been conspicuously adopted from the English law. The project deals with
the historical, evolutionary and prevailing facets of confidential communications with Legal
Advisors. Each substantiated by judicial pronouncements in English and American Laws.
Principles propagated by Interpreters of statutes are also used as phrases of references for a
better validation of points and questions forming the fundamentals of the projects.

RESEARCH QUESTION

The project attempts to answer five main questions, each done by one author. They are:

a) What is the historical basis of the rule of professional privilege?

b) What is the scope of the privilege?

b.1) Who are the legal professionals covered by the privilege?

b.2) Specifically, whether in-house legal counsel is covered by the privilege

c) What is the nature of the communications covered by the privilege?

d) What are the implications of the application of the privilege?

e) What are the exceptions to the application of the privilege?

LITERATURE REVIEW

1. M.N.Howard , ​Phipson on Evidence​, 14​th​ edn., Sweet and Maxwell: London, 1990, p.504.
- This book gives an elaborate detail on the principles of evidence in English law and various
comparisons with different laws. Phipson, a famous interpreter of law, has outlined his views
on the Indian Evidence Act, 1872 and its functioning, philosophically and positively, which
provides a great deal of resource for people who want to understand a comprehensive
analysis on Evidence Law.

2. Sir John Woodroffe & Syed Amir Ali’s Law of Evidence by Kesava Rao – This is one of
the best alternative for Phipson or Murphy. The book works as a reference for any legal
academician, practitioner, etc. If somebody wants to learn about the effect caused by judicial
pronouncements that have caused significant changes in the legal system of Evidence then it
is important to refer to this book, as it gives both physical and physiological idea on it.
 HISTORICAL PERSPECTIVE OF THE CONFIDENTIAL COMMUNICATION

The attorney-client privilege is the oldest of the evidentiary privileges with a history that can
be traced to Roman and canon law. Official references to the rule first appear in English
decisions as early as the late Sixteenth Century. In accordance with the justification for
professional privileges in general, the attorney-client privilege was thought to be essential to
the establishment and preservation of a relationship based on trust between attorney and
client. This justification, however, fell out of favour by the last quarter of the 18th century.
Bentham argued that the privilege is not needed by the innocent party with a righteous cause
or defence, and that the guilty should not be given its aid in constructing a false case.
1
Wigmore countered this argument by pointing out that in lawsuits all is not black and white
but a client’s case may be one where there is no clear preponderance of morals and justice on
either side, and he may think a fact fatal to his cause when it is not, and thus be impelled, if
there were no privilege, to forego resort to counsel for advice in a fair claim. the attorney
2
was the holder of the privilege. As explained by Wigmore : "in the trials of the 1600s, the
obligations of honour among gentlemen were often put forward as a sufficient ground for
maintaining silence."

PRIVILEGE THAT WAS JUSTIFIED

The rationale behind the attorney-client privilege is that it promotes honest and complete
disclosure by clients and thereby serves the public's interest in competent legal
3
representation. Without the guarantee of confidentiality, clients would hesitate to reveal
embarrassing or damaging facts, and attorneys would be forced to render legal advice and
4
services based on partial knowledge of clients' situations. The privilege also protects the
privacy interests of those who seek legal representation by ensuring that third parties do not
5
gain access to clients' personal information. When the privilege is claimed it is for the judge

1
​M.N.Howard et al, ​Phipson on Evidence​, 14​th​ edn., Sweet and Maxwell
2
​ibid
3
The Supreme Court has embraced the utilitarian rationale, stating that the purpose of the privilege is "to
encourage full and frank communication between attorneys and their clients." Upjohn Co. v. United States, 449
U.S. 383, 389 (1981).
4
ibid
5
Wigmore, pg. 232
 6
to determine whether the facts are such that it ought to be allowed. There is no privilege
against the court. The judge can ask the counsel whether he makes a charge on instruction
and if so on whose. He cannot use them as evidence in the case, but can be used after the trial
7
for any disciplinary action to be taken against the counsel.

APPLICATION OF THE RULE OF PRIVILEGE

8
For this rule to be satisfied, certain conditions need to be fulfilled as per Wigmore . They are:

(1) Where legal advice of any kind is sought

9
(2) from a professional legal advisor in his capacity as such,
10
(3) the communications relating to that purpose,
11
(4) made in confidence
12
(5) by the client,

(6) are at his instance permanently protected

(7) from disclosure by himself or by the legal adviser,

13
(8) except the protection be waived.

6
Lyell v Kennedy, LR 27 Ch D 1, 21
7
Weston v Peary, 40 C. 898, 929 CWN 185
8
​Sir John Woodroffe, Keshava Rao, page 2627
9
K. Ponnammal v A. Loganathan, (2009) 6 MLJ 792 (Mad)
10
ibid
11
ibid
12
ibid
13
P R Ramakrishnan v. Subbaramma Sastrigal, A 1988 Ker 18, 22 :1999 CrLJ 124
SCOPE OF THIS PRIVILEGE UNDER SECTION 126 OF THE INDIAN EVIDENCE

Primarily, to understand the scope, we need to peruse section 126 of the Indian Evidence Act,
14
1872. in-house lawyers are included within the purview of Section 126 of the Indian
Evidence Act. ​Alfred Crompton Amusement Machines v. Customs and Excise Commissioners
15
services as the leading authority to extend this general formulation to the specific case of
“in-house lawyers”. But this is a British Case, so can it be extended to India? Yes, it can be.
16
We have a precedent set, in the case of ​Framji Bhikaji v. Mohan Singh it was held that the
law of evidence in India is the same as that in England and courts may refer to English cases
to interpret it. But what if communications made by them, not in the capacity as a lawyer,
then they cannot be considered as a legal advice. This brings us back to the question. What is
“Legal advice”? Referring to a landmark case, In ​Municipal Corporation of Greater Bombay
17
v. Vijay Metal ​Work s, where the observation made in Crompton was re-looked, and was
said that a normal “legal talk” or “legal statement made by a legal officer” cannot constitute a
legal advice. There needs to be a legal guidance made. Ultimately, it was held that, advice
18
needs to cover the purview of legal advice only and nothing else. One good view given by
Phipson was that, communications made in a legal entity, when paralegals or accountants
give consultations can also be protected, provided, the department or firm was consulted in
legal capacity because in such a case even though a non-lawyer gave the advice it may be
construed to be the advice of the firm or the department. Therefore, the position of law is as
follows:

1. In-house lawyers are included within S.126 provided they were consulted in legal capacity
19

14
Upjohn Co. v. United States, 449 U.S. 383 (1981) (the privilege applies to corporations).
15
156 U.S. 578 (1890)
16
​(1893)18 Bom 263
17
​ IR 1982 Bom 6.
A
18
Jones v. Great Central Rly, 1910 AC 4 5
19
Wheeler v. le Merchant, 17 Ch D 675, 681
 20
2. Advice must be sought or given.

3. Advice by paralegals or accountants within a law firm or a legal dept. may also be covered
21
provided (i) the firm was consulted (ii) in a legal capacity

When the communication is in the form of writing and is made known to others, there is no
“confidentiality” for either the client or the advocate claiming privilege under Section 126 of
22
the Evidence Act.

Deprived of all the professional assistance, a man would not venture to consult any skilful
23
person, or would not dare to tell his counsellor half his case, if the privilege never existed.
The exclusion of such evidence is for the general interest of the communit and therefore to
say that, when a party refuses to permit professional confidences to be broken, everything
must be taken most strongly againt him, what is it but to deny the protection, which for public
purposes the law affords him, and utterly to take away privilahe; which can thus only be
24
asserted to his prejudice.

Counsel is obliged to protect interest of client during subsitence of professional engagement

and even thereafter. If proceedings are taken against the lawyer for acts or omission
25
committed by their clients, no lawyers would be able to discharge his function without fear.

20
Minter v. Priest, 1930 AC 558, 566, 568
21
Greenough v. Gasket, 1 Myl & K 101
22
Billa Venkat Papi Reddy v. A. Kishan Rao, 2003 (2) Andh WR 278 (AP)
23
Per BROUGHAM, LC, in Greenough v. Gaskell, 1 My & k 98, 102
24
Bolton v. Corp. of Liverpool, 1 Myl & K 88 p. 94 : 1 LJ Ch 166
25
K. Poonnammal v. A. Logananthan, (2009) 6 MLJ 792 (Mad)
 NATURE OF THE PRIVILEGE
26
The communications must have been confidentially made for the employment, or the
knowledge confidentially obtained solely in consequence of it, to be privileged. A
27
conversation between solicitor and client is not necessarily privileged. To be privileged it
must be preferable to such relationship, though this requirement is to be generously
28
interpreted. If it is not so referable, then the mere fact that a person speaking is a solicitor
and the person addressed is his client affords no protection. Communications, even at an
interview for receiving professional advice, are not protected unless they pass for that
29
purpose. If the document is not confidential, either originally or because of a subsequent
30 31
voluntary publication, it is not privileged. However mere reference to a privileged
document in the pleadings will not destroy the protection.
32
A clients enquiry of his solicitor is well explained in ​Bramwell v. Lucas , a client, “whether
he could attend a meeting of his creditors without being arrested,” was held not privileged on
this ground; but this case seems to fall precisely within the protection and is unlikely to be
followed. Notes of professional interviews and communications, whether made by solicitor
or client are all in the same position. A lawyer’s confidential letter to his client for obtaining
information or instructions as to legal proceedings is privileged although containing a
statement of fact as to what took place. There are such inhibitions observed when a counsel
of one parties is to become a witness in a cae. One such inhibition is that the counsel cannot
be permitted to divulge anything which he gathered from the client in vied of the interdict

26
​Hunt​ v. ​Blackburn​, 128 U.S. 464, 470 (1888)
27
Bullock v. Corrie, 3 QBD 356
28
Calcraft v. Guest, 1898, 1 QB 759, 761
29
Peace v. Foster 15 QBD 114
30
Rebecca v. R, 50 CWN 545: A 1947 C 278
31

32
​2 B.&C. 7.45.
contained in Section 126 of the Evidence Act. He is debarred from stating the contents of any
document with which he has become acquainted in the course of his professional
employement. Not could he disclose any advice which he gave his client. He would normally
be obliged to relinquish his engagement in the case. This was earlier a norm of professional
33
ethic and now this has been council of India rules.
34
Rules should be confined to the legal advisors. Privilege is the client’s nor the attorney’s nor
35
the Party’s, this was mentioned in the case of Anderson v. Bank of Br Columbia . The
section says that the legal advisor shall not be permitted at any time to disclose professional
communications. It was said that a communication once privileged is “always privileged”,
36
which was given in the case of Bullock v. Corrie . This privilege extends to communications
made before the termination of employment but it does not apply to communications made
37
after the employment has ceased. The obligation of secrecy imposed by S. 126 continues
even after the empoloyment has ceased; and has nothing to do with the question whether at
the time of communications were made there was any pending litigation or any prospect of it.
38

39
AIR INDIA V BALABEL

The Court of Appeal said that the increased scope of the work habitually done by solicitors
required that the circumstances in which the privilege attached be re-examined. The Court
identified two approaches in the authorities. Under the broad view, any communication by a
client to a solicitor is privileged if it is made during a professional relationship. The narrow
view accorded privilege only to those communications associated with the seeking of legal
advice. It is the narrow view which has prevailed but the request for advice does not have to
be express. Nor is it necessary for the communication, in respect of which the privilege is
claimed, itself to be or amount to legal advice or a request for legal advice; it is enough if it
comes into existence in the context of the approach for legal advice.

33
N. Yova v. Immannueal Jose, A 1996 Ker 1, 3
34
R . v. Chunderkant, 1 BLR Cr8 : 10 WR Cr Let 10 p. 14
35
2 Ch D 649
36
3 QBD 356
37
Greenough v. Gashell, 1 Myl & K 101
38
In re Attorney, 84 IC 353 : 26 Bom LR 887 ; Minet v. Morgan, 1873, LR 8 Ch 361 : 42 LJ Ch 6278
39
[1987] QB 670.
 IMPLICATION OF PRIVILEGE

The question as to whether a privileged document, that has come into the hands of a third
party, be used or kept confidential is answered in This was the basis upon which the courts
40 41
proceeded in Lord Ashburton v. Pape , Butler v. The Board of Trade and Goddard and
42
Another v. Nationwide Building Society . But, they have also set some exceptions in it. One
is, Secondary Evidence if restraint not claimed before use and some more exceptions. If you
were an innocent receiver, then the reason is irrelevant, when you are asking for return or
43
prevent them from being used. The three cases have re-affirmed it.
44
The decision in ​Goddard and Another v. Nationwide Building Society has affirmed the
proposition that, if a litigant has in his possession copies of documents to which legal
professional privilege attaches he may nevertheless use such copies as secondary evidence in
his litigation: however, if he has not yet used the documents in that way, the mere fact that he
intends to do so is no answer to a claim against him for delivery up of the copies or to restrain
45
him from disclosing or making use of any information contained in them.

When the documents have been transmitted to a third party, this was cited well again in
46
Goddard v. Nationwide Building Society the court held that the party in whom the privilege
vested was entitled to delivery up of the original documents and even the copies that were
made of it. Furthermore, they were injuncted from disclosing or making use of the

40
​[1911-13] All ER 708
41
​[1970] 3 All ER 593
42
​[1987] QB 670
43
Nationwide Building Society v. Various Solicitors, The times, February 5, 1988
44
1970] 3 All ER 593
45
ibid
46
ibid
 47
information contained in those documents. In ​Ashburton v. Pape the court clearly state that
the injunction extended to restraining the defendant from divulging or propagating the
information. It would be logical to deduce that the third party could also be injuncted from
divulging the information to a fourth party. This is consistent with the abovementioned
principle that the privilege is independent of the number of times the document changes
hands or who receives it.
48
The privilege recognized by English law are:

1. Privilege against self-incrimination

2. Legal professional privilege

3. The privilege for source of information contained in publication

4. The privilege not to disclose without prejudice communication

5. No comment may be made about the fact that a witness or party rightly claims as
privilege.

Section 129 of Indian Evidence Act, 1872 specifies - Confidential communications with legal
advisers. It is a restrictive clause in the Indian Evidence Act,1872. It very much deals explicit
warning over privileged communications in a few adjectival words forming a phrase. It also
applies the above said principles laid down by the English law.

Other Provisions:

1. Section 91 of Code of Civil Procedure,1908: Pleader includes an advocate, vakil or

49
attorney of High Court
2. Bar Council of India Rules: Part VI, Chapter II, Section II, Rule17: –“An advocate
50
Shall not breach Section126 of the Indian Evidence Act(Breach entails punishment)

47
​[1911-13] All ER 708
48
Taylor, S.911
49
Chandubhai v. S.A. 1962, G 290
50
Sarkar, Law of Evidence, 18​th​ Edn. Pg. 2630
 EXCEPTIONS DEALING WITH PRIVILEGE

Despite debate over the proper scope of the attorney-client privilege, courts have been
reluctant to establish any general judicial discretionary authority to waive the privilege when
51
a balancing of the relevant interests indicates that abrogation of the privilege is justified.
Courts reason that only a test that ensures predictability will adequately protect the interests
served by the privilege, since clients will be less likely to disclose incriminating or
embarrassing information if they are unsure whether the court may later force the attorney to
52
reveal that information in a judicial proceeding. While several proposed "balancing tests"
have been advanced over the years, none has proven concrete enough to satisfy courts and
53
commentators that its implementation would result in uniform application.

The empirical assumptions underlying the rule are less than settled. Proponents of the
balancing approach suggest that in many, if not most cases, an exception allowing for
disclosure in limited circumstances would make no real difference to clients, and that the
54
normal lawyer-client relationship would thus go unaffected. A strict rule against

51
Jaffee, 116 S. Ct. at 1932 (recognizing a patient-psychotherapist privilege, but refusing to adopt a balancing
approach allowing abrogation of the privilege where trial judge later determined that evidentiary need for
disclosure outweighed patient's interest in privacy);
52
In re John Doe Grand Jury Investigation, 562 N.E.2d 69, 71 (Mass. 1990) (refusing to adopt a rule allowing
abrogation of the privilege when society's interest in the truth outweighed the harm caused by disclosure).
53
29 Loy. L.A. L. Rev. 1659 (1996).
54
ibid
nondisclosure in all circumstances, they argue, unnecessarily adheres to the theoretical
justifications behind the privilege and ignores the practical benefits of allowing such
disclosure. Despite the general tendency to retain a nearly absolute attorney-client privilege,
courts have recognized exceptions to the privilege in a few limited sets of circumstances,
including cases of waiver by the client, cases in which a client seeks or uses legal advice in
furtherance of a crime or fraud, and testamentary disputes. In addition, third parties may be
able in some instances to compel disclosure of a client's conversations with an attorney when
suing the attorney over a matter in which he or she represented the client, or, according to a
recently established rule, when the third party is the executive branch of the government,
seeking to compel disclosure of communications made to government attorneys. Each of
these exceptions is justifiable in light of the utilitarian justification for the privilege, either
because it allows the client to retain some measure of control over the release of confidential
information, or because it operates on communications that lie outside the scope of proper
attorney-client communications.
55
The exceptions are as follows:
56
● Waiver;
57
● Crime fraud;
58
● Testamentary Exception
59
● Attorney Self defence
60 61
● Government Entity;
62
IN RE JOHN DOE GRAND JURY INVESTIGATION​

FACTS

The United States Attorney petitioned this Court pursuant to Rule 6(e)(3)(C)(i) of the Federal
Rules of Criminal Procedure for an order permitting him to disclose certain documents to the

55
Peter Murphy, Murphy on Evidence, 5th edn., Universal Law Publishing Co. Pvt. Ltd.: Delhi, 1997, p.396.
56
29 Loy. L.A. L. Rev. 1659 (1996).
57
64 N.C. L. Rev. 443, 443 (1986);
58
48 U. Miami L. Rev. 259, 263 (1993) (stating that the exception "proscribes the perpetuation of a crime or
fraud under the pretext of privilege").
59
65 N.Y.U. L. Rev. 992, 1009 (1990).
60
82 Minn. L. Rev. 1329 (1998) at 1344.
61
In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 915 (8th Cir. 1997).
62
562, N.E.2d 69, 71(Mass. 1990)
Criminal Division of the Attorney General of the State of Rhode Island for review and
presentation to a Rhode Island grand jury. The documents in question were acquired by a
federal grand jury during investigating the above-entitled matter and are apparently still in its
possession. In an Order dated April 13, 1982, this Court denied the government's petition.
Because the problem of grand jury secrecy is a recurring one, the Court has decided to issue
this Opinion to elaborate on the reasons for its decision.

ISSUE

Whether the documents of the grand jury can be disclosed or not?

ARGUMENTS

The Court's first concern in addressing this matter is whether the United States Attorney
should be authorized to deliver documents held by the grand jury to a third party when the
third party has not requested production of the documents and has not demonstrated a legal
right thereto.

JUDGEMENT

Held, that such authorization cannot be given. “Disclosure of matters occurring before the
grand jury, other than its deliberations or the vote of any juror where an indictment has not
been returned, may be made to attorneys for the State for use in the performance of their
duties.   Otherwise, a juror, attorney, interpreter, stenographer, operator of a recording
device, or any typist who transcribes recorded testimony may disclose matters occurring
before the grand jury only when so directed by the court preliminary to or about a judicial
proceeding or when permitted by the court at the request of the defendant upon a showing
that grounds may exist for a motion to dismiss the indictment because of matters occurring
before the grand jury.   No obligation of secrecy may be imposed upon any person except in
accordance with this rule.”

63
MEYERHOFER V. EMPIRE FIRE & MARINE INS. CO​

63
​497 F.2d 1190 (2d Cir. 1974).
SUMMARY

An attorney named as a defendant in a securities law violation case wants to be able to use
attorney-client privileged information to demonstrate his nonparticipation in the wrongful
acts alleged by Plaintiffs. Attorney Charles Goldberg was named as a defendant along with
the insurance company that he had advised in this suit brought by a shareholder claiming a
number of securities law violations. Goldberg argues that he was not a party to this
wrongdoing, and wants to be able to use a copy of an affidavit previously submitted to the
SEC to prove this. His co-defendants seek to enjoin the production of this information.

SYNOPSIS OF LAW

An attorney’s right to reveal previously privileged information to insulate himself from

liability for alleged wrongdoing?

ISSUE

Was Goldberg justified in making this information public once he learned that he had been
included as a co-defendant?

JUDGEMENT

Held, Yes. An attorney may circumvent the attorney-client privilege if the previously
privileged information would protect them from allegations of wrongdoing.

ARGUMENTS

This is the only exception to the attorney-client privilege in which the attorney is allowed to
waive the privilege. The privilege is otherwise solely at the client’s discretion. The
attorney-client privilege may be waived by client consent. For a waiver to be valid, the client
must waive the privilege knowingly and intelligently. The "crime or fraud" exception to the
attorney-client privilege operates when a client reveals an intention to commit an act
proscribed by law to his or her attorney, or when a client takes advantage of legal advice to
advance a fraudulent or criminal plan. The exception generally does not apply to past
wrongdoings that a client reveals to an attorney. This "testamentary" exception is based on
the notion that revealing information needed to resolve such disputes effectuates the deceased
client's wishes by ensuring that assets are distributed according to his or her wishes. The
privilege is not stripped away entirely in such a scenario, however, because the
communications are only discoverable by persons with a legitimate stake in the deceased's
property, and only in the case of a dispute. In Attorney Self-Defence exception is used during
situations in which the attorney is sued or prosecuted by a third party. The White House
attorneys, as employees of the federal government, could not assert the privilege in the face
of requests for disclosure by agents of that same government. This principle is supported in
English law as well, which was automatically used in India.

64
ARUN SHARMA V TIS HAZARI COURT

FACTS

Appellant made application in RTI to receive copies of entire case which was charged u/ss.
34, 323, 341 of IPC. PIO replied stating that information sought by appellant appears to be
part and parcel of judicial file which he may obtain from concerned Court under CrPC -
Being unsatisfied appellant filed first appeal in which FFA dismissed appeal stating that FIR
was pending in Court - Hence instant appeal.

ISSUE

Can copies of a case charged under certain sections of IPC be protected from disclosure?

JUDGEMENT

Held, Commission found that directorate of prosecution should have ascertained views of
police before its decision in this RTI request. PIO stated that information sought was already
before concerned court of law which means police consented to disclose case diary.

Protection was waived and access was provided. Question before Commission is that PIO
can deny or allow entire Case Diary/CD or provide part information under case diary or
police file sought by appellant as per but also under provisions of 2005 Act. It is argued by
respondent authority that CD will contain minute details of investigation, dates and places of

64
(2017) Bom 213 SCC 147
visits by various investigators, private aspects of several persons, security threatening
information, and thus if such CD can be disclosed it will threaten process of police
functioning and seriously impede investigations and prosecution and thus even under 2005
Act, it cannot be disclosed. As charge-sheet is containing substantial part of CD there is no
need to disclose CD separately. Any disclosure of information which results in security threat
to any person/witness etc, or which is given in fiduciary capacity or which causes
unwarranted invasion of privacy et cetera need not be given. Appeal disposed of.

RATIO DECIDENDI

In terms of s. 8(1)(e) of 2005 Act public prosecutor must move information Commission for
satisfying non-disclosure of any information by PIO.

65
SUBURBAN SEW N’SWEEP V. SWISS-BERNINA​

Plaintiff retailers filed an action against defendants, manufacturer and distributor, alleging
that they engaged in unlawful price discrimination and conspired to restrain trade. A
magistrate judge ordered that all documents obtained by the retailers by rummaging through
the distributor's garbage dumpster be returned to the distributor's counsel and not be used in
the litigation. The retailers filed objections to that order with the court.

​FACTS

When the retailers began suspecting that the manufacturer and the distributor of goods sold in
their stores were conspiring to restrain trade and engaging in price discrimination, they began
to investigate those suspicions. As part of their investigation, they rummaged through the
distributor's garbage dumpster for a period of two years during which they discovered
numerous relevant documents including four claimed to have been protected by the
attorney-client privilege. When the distributor objected to the interrogatories relating to the
documents, the magistrate judge ordered that the documents be returned and not be used in

65
​91 F.R.D. 254 (1981)
the litigation.

ARGUMENTS

The court found, however, that the numerous documents not claimed to be privileged should
not have been excluded from use no matter how they were obtained. After focusing on
whether the distributor and its attorney intended to keep the four allegedly privileged
documents confidential, the court found that they could have destroyed the documents or
rendered them illegible before throwing them away if they had intended them to be
confidential. Thus, the court found that the privilege had been waived.

JUDGEMENT

The court reversed the magistrate judge's order in its entirety.

BIBLIOGRAPHY

■ Peter Murphy, ​Murphy on Evidence​, 5​th edn., Universal Law Publishing Co. Pvt. Ltd.:
Delhi, 1997.