#75: Legal privilege in the Netherlands; an update

In Lawlunch #73 we wrote about an ongoing summary proceeding regarding the infringements on lawyer client privilege in a specific case. Last month the judgment was rendered. In the judgment it was confirmed that the right to legal privilege had been violated in this specific case. However, the judgment of the interim relief judge also contains a multitude of more general interesting points. We will highlight a few of these points in this Lawlunch.

First, a quick look back on the case: in March 2015 a search by the FIOD took place at an asset management company. On the same day, a defense lawyer informed the authorities that he would represent this company. In September 2015, on behalf of the Public Prosecution Service (PPS), the FIOD demanded, pursuant to Article 126ng/ug of the Dutch Criminal Procedural Code (DCPC), all email messages at the defendant’s external email provider. Following this demand, approximately 2 million files were handed over to the FIOD, including 3,115 email messages between client and lawyer. These files were viewed by several investigating officers. The case focused, inter alia, on the question whether it was up to the PPS (126aa DCPC) or to the investigating judge (98 DCPC) to review whether the data was covered by the lawyer client privilege.

In its judgment the Court ruled that the right to legal privilege had been violated in this specific case, but that it is indeed up to the PPS to review the data on legal privilege since it was demanded based on 126ng DCPC and not seized. The system in which a so-called ‘secrecy officer’ assesses whether the data falls under legal privilege, can itself be legitimate.

However, the court did find that the manual used by the PPS for dealing with information possibly subjected to the privilege was in conflict with Article 126aa DCPC. According to this manual, a staff member of the investigating authorities assesses whether the digital documents fall under the right of privilege, whereas according to Article 126aa of DCPC, the public (secrecy) prosecutor must take that decision. The PPS objected that this manual no longer corresponds to the current practice, but the judge ruled that the current practice of the PPS does not guarantee that the privilege of the lawyers, who act as plaintiffs in this case, is respected. Furthermore, the judge stated that the proposition is justified that there is at least a real risk that the privilege has been or will be violated in several criminal investigations. This is an important consideration of the Court. As a result, the state must disclose the future version(s) of the manual. A new, temporary manual has now been published by the PPS. A first look reveals that this manual still leaves a lot of questions unanswered, but it goes beyond this article to go into detail now.

In addition to the obligation to disclose the new manuals regarding the handling of privileged information, the interim judge concludes the judgment with a number of other pros and cons. It is explicitly stated that this judgment only relates to the situation that the special investigative power 126ng/ug Sv is used – thus not to seizure – and to (future) cases in which (one of) the Stibbe lawyers are involved. Within these frameworks, the following is decided:

• The state may not use the power under article 126ng/ug (demanding certain data from the provider of a communication service) insofar as it concerns information that is covered by the right of legal privilege. The Court blamed the state for the fact that all email messages were demanded while it was already clear at that time that the defendant was being represented by a defense lawyer. “With that knowledge, the State could and should have prevented the violation of the privilege by instructing the provider company to provide only certain data of which – almost – it was certain that they were not privileged data.”
• If an investigating officer in exercising the power under Article 126ng/ug comes across potentially privilege material, the public prosecutor must be notified without delay. If the prosecutor determines that the information is indeed covered by the privilege, destruction must be ordered immediately.
• The destruction must be done in such a way that the information is no longer accessible. This may not be recovered later.

These considerations of the Court hold interesting questions in itself. Because how can digital data really be destroyed? Or will there always be footprints available? And in what way may the digital data be reviewed? May the public prosecutor take a quick look in the privilege data to review it or should all data be digitally filtered?

In any event, it turns out to be of great importance to always question the course of events in detail: who viewed the requested documents, and in what order? How quickly and in what way was the prosecutor informed that there was privileged material among the documents? When was destruction ordered? And how exactly was that order implemented?

Also very relevant is the consideration that the PPS should put a limitation in the demand at information upfront, instead of reviewing and destroying the documents afterwards. The PPS should formulate the demand in such a way that files which contain possibly legal privileged information fall out of the scope of the request. Here lies a task for the defense to check that not too much data is requested.

The last word on this has not been said. So to be continued!

Do you have any questions or would you like to exchange views with us? Please contact us at boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.