This is an interesting case that started in the Bahamas and ended up in the UK Court of Appeal (Sports Direct International Plc v Financial Reporting Council  EWCA Civ 177).
This piece written up by the team at ParrisWhittaker focuses on email attachments and whether, because they were attached to privileged emails, they too were privileged, specifically where the attachments also existed elsewhere as standalone documents or presumably as attachments to non-privileged emails.
This is an important element not to overlook when dealing with eDisclosure, especially given the fact that documents often seem to have a life of their own and ‘spread’ around an organisation, often spurning different email chains in their own right. It’s therefore important that when taking decisions on how to handle eDisclosure, and especially in the case of de-duplication strategies, that is considered, otherwise one runs the risk of inadvertently withholding documents as privileged when they maybe are not.
In most cases this isn’t really an issue as de-duplication is often applied at a family-level, meaning that standalone instances would not be overlooked, but this is sometimes changed in an effort to reduce the volume of documents to be reviewed.
For more information on how to manage eDisclosure exercises please feel free to contact me or Gary Foster.
A party in litigation cannot, therefore, try to circumvent disclosure rules by claiming an attachment sent under over of a privileged email is, therefore, also privileged.