In the case of Gorbachev v Guriev [2024] EWHC 622 (Comm) earlier this year, the court addressed the “cherry-picking” rule concerning legal advice/litigation privilege. This rule prevents a party from selectively disclosing favourable aspects of privileged material while withholding unfavourable parts under the guise of privilege.
The case centred on the claimant’s waiver of privilege over a chronology prepared by his lawyer to demonstrate consistency in his account of events. The court found that this waiver extended to subsequent versions of the chronology and related documents, emphasising that a party cannot choose to disclose only those parts of privileged material that support their case, while hiding the rest.
The claimant had initially disclosed a 2013 chronology to counter the defendant’s assertion that his account had changed. However, the court ruled that this partial disclosure risked creating a misleading impression. To ensure fairness, the court ordered the disclosure of the updated chronology and all related instructions, even those after created after the 2013 chronology.
This judgment is an important reminder for parties to carefully consider the scope of waiver when disclosing privileged material and that any selective disclosure might compel the party to release all related documents to present a complete and fair view.
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