Generally, if a document is 'privileged' then it can be withheld from production to third parties, including the court and opponents in litigation and in response to requests for information such as subject access or Freedom of Information requests. It can also be particularly important to protect the privileged status of documents to avoid the risk of inadvertent disclosure of a wider category of documents than anticipated and to avoid damaging your position by disclosing strategic advice.
The main types of privilege are:
'Without prejudice' communications can also attract their own category of privilege.
Privilege is a notoriously tricky issue and is commonly misunderstood. It can inadvertently be lost or waived if not protected appropriately. It is important that organisations:
Our information law team regularly provide advice and training to clients on these issues, both in the context of litigation and in subject access / freedom of information requests.