Seeking legal advice? Will your information be safe? Caught up in a dispute, and deliberating on a settlement? Will your discussions be admissible as evidence?

The Internal Investigations and White Collar Defence Practice Group at NDA bring to you a two-part journey of privilege and its waiver – where we take you through the general principles governing legal privilege, exceptions, and waiver of such privilege.

Internal investigations today take many forms, depending upon the nature and scope of the investigation and the potential implications cannot be ignored. Privilege assumes even more significance in this context. The concept of “privileged communication” has evolved over centuries and has often been a topic of debate. Broadly speaking, the over-arching rationale of legal privilege is to encourage the seeking of legal advice on a confidential basis. The key reason for maintaining such confidentiality is that the information should not be used to the detriment of the client, but rather only to advance the client’s interests. Another form of legal privilege is found within the ‘without prejudice’ principle, whereby confidential documents created or written in pursuance of a compromise or settlement related to a dispute are not admissible in court without prior consent of both the parties involved in such settlement proceedings.

In Part I, we discuss the much debated - client-attorney privilege and its underpinnings. While giving an overview of the contours of the waiver of such privilege in India, we also draw references from common law jurisdictions such as the UK and Singapore. The detailed research paper is available here.

Stay tuned for Part II of our series next week, where we will navigate through various aspects of the “without prejudice” rule, its applicability in different jurisdictions and waiver of such rule.

For any help or assistance please email us on concierge@nishithdesai.com.

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