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Questions and Answers
What is the main purpose of litigation privilege according to the content?
What is the main purpose of litigation privilege according to the content?
- To allow unrestricted access to witness identities for all parties.
- To provide immunity from legal accountability in civil matters.
- To protect all communications made during legal proceedings.
- To safeguard legal advice aimed at avoiding litigation. (correct)
Which of the following statements correctly describes documents covered by litigation privilege?
Which of the following statements correctly describes documents covered by litigation privilege?
- It covers any document prepared by the party during litigation.
- It excludes documents created for purposes other than seeking legal advice. (correct)
- It protects all correspondence, regardless of the party involved.
- It applies only to original documents, not copies or translations.
What distinguishes adversarial litigation from investigatory litigation in the context of privilege?
What distinguishes adversarial litigation from investigatory litigation in the context of privilege?
- Privileged communications only arise in adversarial contexts.
- Adversarial proceedings focus on defense or resistance, while investigatory does not. (correct)
- Investigation-related communications receive broader privilege protections.
- Adversarial litigation involves more than one party, while investigatory is unilateral.
Under what condition does privilege attach to a copy of an unprivileged document?
Under what condition does privilege attach to a copy of an unprivileged document?
What aspect of witness identities does litigation privilege protect?
What aspect of witness identities does litigation privilege protect?
Which of the following reflects a common misconception about the scope of litigation privilege?
Which of the following reflects a common misconception about the scope of litigation privilege?
What is a potential exception to the application of litigation privilege?
What is a potential exception to the application of litigation privilege?
What is the primary right associated with litigation privilege?
What is the primary right associated with litigation privilege?
When is litigation privilege engaged?
When is litigation privilege engaged?
Which of the following communications would typically not be covered by legal advice privilege?
Which of the following communications would typically not be covered by legal advice privilege?
What type of litigation does the privilege not apply to?
What type of litigation does the privilege not apply to?
Which of the following documents is covered by litigation privilege?
Which of the following documents is covered by litigation privilege?
Which statement regarding the scope of internal communications is correct?
Which statement regarding the scope of internal communications is correct?
What is meant by the 'dominant purpose' in relation to litigation privilege?
What is meant by the 'dominant purpose' in relation to litigation privilege?
In which scenario would a position statement created for mediation not be considered protected by privilege?
In which scenario would a position statement created for mediation not be considered protected by privilege?
Which of the following is not a characteristic of communications covered by litigation privilege?
Which of the following is not a characteristic of communications covered by litigation privilege?
What defines the scope of litigation privilege in a legal context?
What defines the scope of litigation privilege in a legal context?
Which of the following items is NOT covered under legal advice privilege?
Which of the following items is NOT covered under legal advice privilege?
What is the evidential burden in establishing a claim of privilege?
What is the evidential burden in establishing a claim of privilege?
In the context of litigation privilege, which communication is considered privileged?
In the context of litigation privilege, which communication is considered privileged?
Which of the following accurately describes the relationship between litigation privilege and third parties?
Which of the following accurately describes the relationship between litigation privilege and third parties?
Which scenario may NOT fall under the protections of litigation privilege?
Which scenario may NOT fall under the protections of litigation privilege?
What must a court consider when evaluating a claim of privilege?
What must a court consider when evaluating a claim of privilege?
Which of the following accurately reflects exceptions to litigation privilege?
Which of the following accurately reflects exceptions to litigation privilege?
Which statement accurately reflects the privilege against self-incrimination in relation to spouses?
Which statement accurately reflects the privilege against self-incrimination in relation to spouses?
What is the impact of the Convention on the application of self-incrimination privileges in different jurisdictions?
What is the impact of the Convention on the application of self-incrimination privileges in different jurisdictions?
Which type of communication is protected under legal professional privilege?
Which type of communication is protected under legal professional privilege?
In what scenario can an agent or trustee claim privilege in a legal action?
In what scenario can an agent or trustee claim privilege in a legal action?
What limitation exists in regards to the privilege of self-incrimination when it comes to strangers?
What limitation exists in regards to the privilege of self-incrimination when it comes to strangers?
Which factor does not affect the validity of legal professional privilege?
Which factor does not affect the validity of legal professional privilege?
What constitutes a statutory exception to the legal professional privilege?
What constitutes a statutory exception to the legal professional privilege?
In adversarial versus investigatory litigation, what is a key difference relating to the privilege?
In adversarial versus investigatory litigation, what is a key difference relating to the privilege?
Which principle allows a person entitled to privilege to refuse to disclose certain information during a trial?
Which principle allows a person entitled to privilege to refuse to disclose certain information during a trial?
What happens if a person entitled to claim privilege fails to do so?
What happens if a person entitled to claim privilege fails to do so?
What cannot be drawn against a party claiming privilege according to established principles?
What cannot be drawn against a party claiming privilege according to established principles?
In the context of privilege, what principle is applied regarding competing jurisdictions?
In the context of privilege, what principle is applied regarding competing jurisdictions?
What type of evidence is a party allowed to use to prove a matter that another party claims privilege over?
What type of evidence is a party allowed to use to prove a matter that another party claims privilege over?
In the Kinglake case, what was the outcome regarding the objection to the witness's evidence?
In the Kinglake case, what was the outcome regarding the objection to the witness's evidence?
Which of the following is NOT a valid communication that can typically be protected under privilege?
Which of the following is NOT a valid communication that can typically be protected under privilege?
What is an exception to litigation privilege that allows information to be disclosed?
What is an exception to litigation privilege that allows information to be disclosed?
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Study Notes
Litigation Privilege Overview
- Legal advice aimed at preventing or settling potential legal proceedings is protected under litigation privilege.
- The privilege includes protection for the identity and details of witnesses intended to be called during litigation.
- A party has a legitimate interest in safeguarding witness identities until a relevant stage in the litigation process.
- Litigation privilege is a fundamental right, limited only by clear subordinate legislation.
Document Coverage
- Documents created for instructing a lawyer or obtaining litigation-related advice are privileged.
- Documents obtained for litigation purposes but not created for that purpose are not protected.
- A copy or translation of an unprivileged document does not gain privilege just because it is created for litigation.
- A privileged document can arise from a copy made specifically for litigation if the original wasn’t within a party's control when the copy was created.
Communication Limits
- Communications directly to the Board of Directors retain privilege, bypassing designated officers or employees.
- Legal advice privilege does not cover communications with employees who are not designated officers when investigating on behalf of a company.
Scope of Litigation Privilege
- Engaged when litigation is considered reasonably likely.
- Covers communications aimed at obtaining information or advice related to litigation.
- Includes deciding on litigation pursuit or settling disputes.
- Documents revealing or intertwined with privileged information are covered.
- Does not extend to internal communications outside the defined privilege scope, and only applies in adversarial litigation.
Self-Incrimination Considerations
- The privilege against self-incrimination pertains specifically to the individual claiming it, not their spouse.
- A spouse who testifies may not invoke privilege on behalf of the accused.
- Companies can claim privilege similar to individuals, but it does not cover self-incrimination of office holders.
Legal Professional Privilege Scope
- A client may refuse to provide evidence or documents concerning confidential communications, constrained by the client's waiver.
- The judge should not weigh the importance of evidence against a claim to privilege; privilege stands alone.
- If a claim to privilege is waived, others cannot object to the absence of privilege.
- Claims to privilege must be evaluated based on domestic law, not foreign jurisdiction rules.
General Principles in Privileged Relationships
- Admissible evidence may be excluded based on self-incrimination or legal professional privilege.
- A witness' privilege is solely theirs; other parties cannot benefit from it.
- Evidence matters claimed under privilege may be proven by alternative evidence sources.
- No adverse inferences can be drawn from a witness claiming privilege.
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