In the month where pre-trial conferences kicked off in earnest, the Lively v Baldoni lawsuit is back in the headlines. For those of you that have managed to evade any mention of what is happening in Hollywood; Blake Lively is suing her ‘It Ends With Us’ co-star, Justin Baldoni, for sexual harassment and an alleged smear campaign. Baldoni is countersuing Lively, her husband Ryan Reynolds and The New York Times for defamation.
Whether or not there is any merit to any of these allegations or claims remains to be seen. What has caught our eye is the allegation in Lively’s initial claim that fan backlash against her approach to marketing the film was part of a carefully orchestrated effort by Baldoni’s PR team. Lively was able to obtain text messages between Baldoni, his publicist and a crisis management expert via civil subpoena. Herein lies the lesson for employers – how confidential are your communications, especially with third party advisors? When it comes to litigation, the surprising answer is often that such communications are not very confidential and must be handed over to the other side if relevant.
Disclosure of documents, emails, recordings and messages on the likes of Slack/ Teams/ any colleague group chats (to name just a few) are all fair game under the employment tribunal disclosure rules. Even third parties (despite not being named in proceedings) may be required to disclose any documents deemed necessary and relevant to the case.
The basic rule is parties are required to disclose all documents relevant to the issues in the case (even if it adversely affects their case) save for those protected by legal advice/ litigation privilege.
So, what is privilege?
- Legal advice protects confidential communications between a lawyer and client which are created for the purpose of giving or obtaining legal advice. These are protected and non-disclosable in the event of a dispute. This does not extend to other professional advisors such as Accountants, PR and Risk Management, Bankers and Auditors. Crucially, you cannot reverse the situation and hope that non-privileged documents will gain privilege if you send them to your legal advisor after the fact – it doesn’t work that way.
- Litigation privilege is often misunderstood because timing is everything. A document/communication will attract litigation privilege if it is between a lawyer, its client or a third party, and created for the dominant purpose of preparing for existing or anticipated. Therefore, unless you have a crystal ball, you aren’t going to be able to rely on this until the situation sours and there is a dispute or potential dispute on the horizon.
This is also relevant in relation to Data Subject Access Requests (DSAR), which are on the rise, especially in the context of workplace investigations. Information covered by privilege does not need to be disclosed. Further, a third party holding information does not automatically make it disclosable in response to a DSAR, although the data controller must consider whether the information can be provided without revealing the identity of the third party (e.g. through redactions/anonymisation).
So, what’s the lesson? Be mindful of what you say and who you say it to. It’s simple but so often overlooked. Disputes and disclosure can be a minefield, as can investigations.
