Bristol-Myers Squibb Company v Apotex Pty Ltd (No 3)

In the case of Bristol-Myers Squibb Company v Apotex Pty Ltd (No 3), the court was tasked with determining whether certain notes made by an expert witness, Professor Easton, during his observation of an experiment were protected by legal professional privilege. The notes in question were made during an experiment conducted by Associate Professor McGeary and were subsequently used by Professor Easton to draft an affidavit for the proceedings. The primary dispute centred on whether the privilege had been waived when the notes were used in this manner.

The court had to decide whether the notes were protected by legal professional privilege, specifically litigation privilege, and whether this protection was lost when the notes were used to draft the affidavit. The court found that the notes did indeed attract legal professional privilege upon their creation, as they were made to communicate information, advice, and opinions to the applicants’ solicitors. However, the court also concluded that the privilege was effectively waived when Professor Easton used the notes to draft his affidavit. This use of the notes meant that they were no longer protected by the privilege, as the documents had been deployed in a manner that exposed the protected communications.

The court's reasoning was grounded in the principle that while legal professional privilege protects confidential communications, documents created for the purpose of facilitating these communications also attract the privilege, particularly in the context of litigation. However, the court found that the privilege was lost once the notes were used to draft the affidavit, as this deployment exposed the confidential communications contained within. Consequently, the court ordered that the applicants provide copies of the notes to the respondent’s solicitors within seven days and that the applicants pay the respondent’s costs of the interlocutory application.