If you write something down, particularly on a computer, it has the potential to come back and bite you. It can bite you even if you think the communication is privileged or between colleagues. There are several cases in which parties have waived privilege. Here we look at some of the cases where the courts have examined internal documentation which would, normally, be presumed to be privileged. We then look at some examples where lawyers, and clients, have sent “unhelpful” communications in circumstances where they did not think they would ever be read by others.
(At almost the same time this was being published Above the Law published, under the sub-heading “Email scandals”: Lawyer: Don’t make domestic violence jokes in your emails. The issue concerned a charge against a CEO of domestic violence. There were issues with the District Attorney Mr Gascon, the inter-lawyer emails read “Seems like Gascon needs to be visited with some domestic violence” ).
THOMPSON -v- ARNOLD
In Thompson -v- Arnold  EWHC 1875 (QB) the defendant applied to strike out a Fatal Accident Act action on the grounds that a personal injury action had been compromised in the deceased’s lifetime. The defendant argued (successfully) that this was an abuse of process. The claimant’s solicitors had believed that proceedings could be issued twice and was planning to issue again after death. The defendant settled the first action knowing a subsequent action would be an abuse.
Both sides waived privilege in the application to strike out. This meant that the judge could see:
A “hard nosed” memo from the defendant.
“By contrast, Mr Bonser (who was also called) was eager to take full advantage of any mistake made by opponents in litigation. His approach was hard-nosed and ruthless. He sought, through the available litigation process, to achieve a settlement of the claim at the lowest possible level for the benefit of his employer, the MPS, and had no scruples about taking full advantage of the claimant’s mistake to help achieve this. In a memo of 24thNovember he told the case supervisor, his superior at the MPS, that there appeared to be an opportunity to settle the claim on the basis of a claim for Mrs Thompson herself, and not her estate. In the action itself, a claim for lost years had not been pleaded. Without it, he valued the action at £80,000, but wished to pay in £10,000 more to take account of the lost years claim – “.. in order to make the bait more enticing for the claimant.” (He pointed out that if the claim became a fatal accident one, it could worth as much as £150,000). In evidence he regretted having used the expression “making the bait more enticing”, but it was apparent to me that the reason for his regret was nothing to do with the substance of the sentiment he expressed, but everything to do with its appearance: it seemed to him to sound very callous and hard-hearted. His intention was to improve the payment-in to a level where it was more likely the case would settle, and the claimant, having put herself into the jaws of a trap by her own actions, would find the trap closed upon her.”
A deliberate “talking up of the claim” by the claimant’s solicitor.
Despite the fact that counsel had advised that the payment in was acceptable, Miss Scates promptly told Miss Woodwark in the telephone conference on the 16 December that she could not advise her clients to accept it. This is open to the comment that it was misleading. The claimant in the present action alleges that the conduct of the defendant deliberately misled the claimant; the defendant maintains that if the claimant establishes the four requirements set out in Thomas Bates (see paragraph 14 above) I should not exercise my discretion because the claimant cannot seek equitable relief with “dirty hands”. It will emerge that in my view this particular comment, thrown away though it might have been with a view to encouraging a higher settlement figure, was in fact misleading, whereas the conduct of the defendant, through Miss Woodwark, was not.
Boreh -v- Republic of Djibouti  EWHC 769 (Comm)
The judgment of Mr Justice Flaux in the Boreh case makes illuminating reading, particularly those parts that deal with internal documents.
Before considering the background to the proceedings and setting out my detailed findings about the events with which this application is primarily concerned, I should just say something about the materials before the court. Following the order which I made at the hearing on 13 November 2014 and the subsequent directions hearing on 22 January 2015, Djibouti has waived privilege, solely for the purpose of the proper determination of this application, in a substantial number of documents passing between it and its legal advisers and in internal communications between those legal advisers. Inevitably there has not been a complete waiver of privilege and there are some documents in relation to which Djibouti was not prepared to waive privilege. That is their legal entitlement and prerogative and the court must be careful not to draw adverse inferences merely from the fact that privilege has been claimed and not waived.
It is also important to have in mind that one consequence of the waiver of privilege which has taken place is that the court has seen many of the internal discussions between the members of the legal team which no-one would have thought would ever be disclosed to the court or to the defendant. I have in mind in considering those communications, particularly where intemperate or ill-advised language is used, that it would be wrong to be over-critical of what was said when it was never intended that it would be disclosed.
The disclosure given included memos, internal notes and communications passing between solicitors and leading counsel. However the e-mails; notes and memorandums are noted, in the judgment, make excruciating reading. So for instance an e-mail where a solicitor had suggested that they go through the files to find out how the court had been misled.
“Mr Gray’s response, minutes later was as follows:
“This is a waste of time. Please do not do that.
All you are likely to find is that on date X we realised the error, addressed it and moved on. Is that something you think is appropriate to admit to the court? Would you like me to publicly apportion blame on other lawyers? All you are doing is falling into their trap. And it would not end there.
The fact is we were not alive to it at the hearing, we did not mean to mislead the court and we are addressing it that way.”
Mr Gray really had no proper explanation for this disgraceful email in cross-examination. He was forced to accept that Mr Handley was obviously right when he said later that the court should be informed. However, the attempt to suggest that other lawyers were to blame, when he knew that he was the only English solicitor who had sat through the September 2013 hearing knowing the full implications of the misdating issue, was wholly wrong. This email, as Mr Kendrick QC put to Mr Gray, albeit he would not accept the point, was deceiving Mr Handley into thinking that he, Mr Gray, had not known: “we were not alive to it at the hearing” again the words of equivocation, whereas others in the firm had.”
“CHURN THAT BILL,BABY”
The e-mails in a report by the ABA Journal in relation to a dispute with DLA Piper must have been written by people who believed their communications stood no chance of seeing the light of day.
“Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” wrote Thomson. “That bill shall know no limits.”
This was explained by the firms “the emails were in fact an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing.” Either way it is hardly a welcome document in a case that was a dispute about over-billing.
E-MAILS READ OUT IN COURT: “I SPEND MOST OF MY DAYS BULL****ING PEOPLE”
Few lawyers think that their e-mails could be read out in court, particularly in cases where they are the defendants. This is what happened to the defendants in the trial of Dewey & LeBoeuf partners.
“—Responded this way to an email congratulating him on a refinanced debt: “No problem. I spend most days bulls—ing people.”
—Gave this advice: “Do what I do. Work out a lot and do drugs.”
—Responded this way to an email urging partners to collect money from clients: “If any of them call me, I will kill them.””
E-MAILS THAT JUDGES GET HOLD OF (BECAUSE IT WAS SENT DIRECTLY TO THEM BY THE SENDER)
Lady (Legal) Writer reported on embarrassing e-mails in Indiana
“…a Nebraska lawyer accidentally copied a Nebraska Supreme Court justice on an email about a case that had just been heard by that court. The lawyer (who was not involved in the case) sent the email to two attorneys involved in the case to congratulate them on their oral arguments in the case and the way they “dealt with some ill-conceived and uninformed questions.” Unfortunately for the lawyer, he accidentally copied twenty-four other people on the email, including the chief justice.”
In another case a lawyer was suspended for a year.
CLIENTS CAN CAUSE PROBLEMS AS WELL: TWEETS DID NOT HELP
Look at the exchange of tweets discussed by Mr Justice Jay in Saunderson -v- Sonae Industria (UK) Ltd  EWHC2264 (QB). The judge was considering the evidence of one of the claimants in the group.
“In December 2008 and December 2009 Mr Swift was involved in road traffic accidents, and brought claims for compensation which were successfully resolved.
On 22nd February 2013, Mr Swift was involved in the following conversation on Twitter:
“Leon Swift either of you’s jumped on this sonae claim bandwagon?
TC been all over the radio
MC residents living close going to solicitors due to harmful emissions from the plant
MC looks like everyone’s doing it now because it’s shut down
Leon Swift they’ve admitted liability so anyone living or working in the area at the time of the fire can claim
MC get on it ken/tom
MC not for me #too honest
Leon Swift too honest ya, good one matt. I’m getting involved I reckon, pays for the summer holiday if it goes thru
TC ha ha you’re a bad man Leon
MC he’s a fraud Tom
Leon Swift takes a fraud to know a fraud Matthew. Mr ‘I was in that car that crashed ye’ #showmethemoney
MC my neck was sore when Dave crashed #thetruth
Leon Swift Asking for trouble driving in flip flops
MC if you crash give us a shout #whiplashclaim
MC I’m sure you was fine that time Dave had a crash
Leon Swift least I was in the car though Matthew
MC so was I”
Mr Swift tried to dig himself out of the massive hole created by these exchanges. He said that the use of the term “bandwagon” was not the best choice of words. He agreed that the Tweets could be construed as indicating that any claim he made would be fraudulent. However, he told me that he was not saying at the time that his claim was not genuine. He well understood, he said, that an admission of liability did not mean that one could recover damages regardless of injury.
I watched Mr Swift very closely during the course of Mr Jones’ well-briefed and well-constructed cross-examination. One possible explanation for his extreme discomfiture and obvious embarrassment was that his Tweets were being taken out of context, and he was ashamed by the impression they may have been making. Another explanation is that he well knew that the Tweets contained accurate insights into his true state of mind. Making allowances as I do for the degree of banter that may accompany much discourse over these social networks, but having regard to all the available evidence, I regret that I have to favour the second explanation.”