Emails in StayinFront case probably not privileged: lawyer

Lay advisers are protected by litigation privilege, but it doesn't extend to wider legal privilege

A US court ruling stating emails exchanged between a Kiwi software executive and his legal adviser are not privileged communications is probably correct, says a local legal expert.

Last week, Computerworld reported that US CRM vendor StayinFront is suing New Zealander Warren Tobin, a former executive vice-president, for punitive damages, after he instituted grievance proceedings against the company with the Employment Relations Authority.

In respect of the case, US District Court Judge Stanley Chesler has denied privilege to emails exchanged between Tobin and his local legal adviser.

Kathryn Beck, of employment law firm Swarbrick Beck, and convener of the New Zealand Law Society’s employment law committee, says while lay advocates and lawyers are treated the same way within the confines of the Employment Relations Authority’s hearing arrangements, beyond that the situation gets complicated.

“When it comes to privilege — in terms of disclosure — in the Employment Relations Authority it’s a bit fluid, to be honest, because there are no real rules around it,” says Beck. “It’s a bigger and more complex issue than that.”

“There are circumstances where [this disclosure] might also happen in New Zealand, but it would depend on the circumstances,” she says.

Beck says US courts apply their own laws to their own procedures.

“If [a court] finds information sitting there that is, in fact, not privileged within their jurisdiction then I would expect that their rules would apply.”

Normally, this scenario should work the other way around, too, unless protections apply, she says. If, for example, someone had exchanged advice in the US and then engaged in litigation in New Zealand, then New Zealand court rules would apply, provided the information was relevant, says Beck.

Before instituting proceedings in a different jurisdiction she recommends looking at that country’s laws to find out how you can expect be treated within that jurisdiction.

Lay advocates and lawyers are treated the same way at Employment Relations Authority hearings, she says. This means lay advisers are protected by litigation privilege, which covers communications around or relating to the preparations for litigation. But it doesn’t extend to wider legal privilege, which covers all communication between a lawyer and a client, she adds.

“What tends to happen, in both the authority and the court, is that a person who is not going to be making a decision in the case will view [the information] and [decide whether emails, for example] are disclosable or not.”

“The employment law system is set up to be user-friendly,” she says. And, in fact, [it] encourages non-qualified people to be involved.”

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Tags lay adviseremailstayinfrontcourtlawyerlitigation

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