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Be careful where you doodle

19 February 2010

Of the habits I’ve learned over the years advising on commercial contracts, one of the most irritating is perhaps that I do not now feel prepared to read anything at all (documents, contracts, covering emails) without a pen in my hand ready to underline important bits of it or write next to it. I know that I’m not alone in this.

In the relatively measured world of contract negotiation, where an apparently wildly aggressive spew of words annotating text along the lines of “How much?” “when?” “Why would we agree this?” or simply “No!” – much of which allows me to pick up the phone and have a much more measured conversation with the client & or will lead me to making similar points to the other side as part of a negotiation.

In the context of a dispute however these sorts of annotations could be much more problematic as it is less clear when they will be priviledged (i.e. prevented from being disclosed to the other side or as evidence). A recent case however suggests that these sorts of annotations will not always be privileged, unless they clearly give a clue as to the advice being offered by a lawyer to his/her client. It might well be acceptable therefore for a court to allow a document such as a contract which is partly underlined as evidence in the event of a dispute, even though it might highlight the areas that the other side consider significant and those that it does not.

Comments made by non-lawyers (“Oooops – shouldn’t have done that!” – “we’re stuffed!” etc) are not generally privileged, so can be disclosed and may well be of interest to the other side. The conclusion seems to be obvious – when dealing with a dispute, keep the originals clean, keep the legal advice separate and make sure that this advice remains privileged.

If you must annotate, annotate copies, be aware of the danger you might have to disclose that copy – oh and do leave annotations at work. Newspapers and novels are probably best left unannotated – particularly if they need to go back to the library…

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Richard Nicholas

Richard Nicholas

Partner and Responsible for In House Lawyers

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