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My understanding, based upon Common Law in England & Wales, is once something is sent to a solicitor, it is subject to Legal Privilege.

If the solicitor is unable to open an emailed document, say because it is password protected with an unknown password, would the contents still be subject to Legal Privilege without being seen?

If the solicitor refused to store it on their email server, because it was unreadable, and they deleted the email, would it still have Legal Privilege?

For this question, assume that the sender knows the password and is happy to provide it at a future date, when they want their solicitor to view the document.

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    If the solicitor never read the document and deleted it, then it doesn't matter whether it has legal privilege. If the solicitor can't produce something, then there is likewise nothing for the privilege to protect.
    – phoog
    Commented Jan 8 at 22:11
  • @phoog What if I show my sent folder on Hotmail and prove I sent the document that the solicitor deleted?
    – user5623335
    Commented Jan 12 at 23:27
  • That just shows that you sent it, if they don't have it they don't have it. So, what if what?
    – Michael Hall
    Commented Jan 15 at 23:34
  • @MichaelHall I can somehow prove I sent this to my solicitor, even though he never received it because insert internet related catastrophe here or because the solicitor deleted it without even looking.
    – user5623335
    Commented Jan 16 at 0:26
  • Yes, you can prove you sent it. What does that have to do with legal privilege?
    – Michael Hall
    Commented Jan 16 at 0:30

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It is not the electronic bytes of the attachment that has privileged status, it is the communication between attorney and client - i.e. the information and ideas contained within the document.

If an encoded document is not human readable, and/or it is subsequently deleted, then there has been no communication - no exchange of information between attorney and client. There would be no conversation, no statements, no evidence, opinions or legal strategy shared, no compelled testimony as to the (unknown) contents... in other words there is nothing to protect.

Note, however, that the attachment and its contents should be presumed to contain privileged information, and be treated in the same manner as an unopened letter. In other words, it should be safeguarded by the same means as any other attorney client communication under the assumption that a password will be provided later.

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    That's an interesting question. Most such requests, or requirements, are for a specific thing, and that thing would be clearly specified. (for example, phone records, DNA results, a photograph or video...) Without even knowing with the file contains how might a solicitor comply? Conversely, if any and all client/attorney communication, (including email) falls under legal privilege, why would anyone ever presume that an attachment, encrypted or not, might NOT qualify?!
    – Michael Hall
    Commented Jan 8 at 22:00
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    @user5623335 It would almost surely be privileged subject to exceptions to the privilege (most notably the crime-fraud exception).
    – ohwilleke
    Commented Jan 8 at 23:53
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    @user5623335 It would be protected - just like an unopened letter would be.
    – Dale M ♦
    Commented Jan 9 at 9:04
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    @DaleM, the unopened letter is a geat example. I may edit this into my answer ...
    – Michael Hall
    Commented Jan 9 at 16:04
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    @user5623335 I wouldn't expect otherwise, but just wanted to clearly state the rule.
    – ohwilleke
    Commented Jan 12 at 23:41

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