Tan v Commissioner of the New South Wales Police

The case of Tan v Commissioner of the New South Wales Police dealt with the issue of legal professional privilege in relation to electronic and computer data records seized by police during the execution of lawfully issued search warrants. The plaintiff, Tan, had requested a forensic examiner to extract data from his Blackberry mobile phone. The electronic records containing digital data stored on the mobile phone were extracted and transmitted by the expert examiner to his computer. The plaintiff was provided with customised reports containing limited data derived from the first generation of material transmitted to the examiner's computer, after which the plaintiff had the electronic memory on the mobile phone wiped.

The legal issues before the court were whether the electronic records, the customised reports, and the data transmitted to the examiner's computer were protected by legal professional privilege. The plaintiff argued that all the seized records were privileged based on advice from the lawyer retained to obtain electronic phone data. The court had to determine whether the digital data initially extracted from the mobile phone qualified for privilege, and if the customised reports were privileged despite the plaintiff wiping the phone's memory.

The court held that the digital data initially extracted from the mobile phone was not privileged. This was due to several reasons: the whole of the stored data was not sought or required by the plaintiff's lawyer; the digital form of the data was in the nature of original material and was not a copy of other material; and the entirety of the stored mobile telephone data was not brought into existence for the dominant purpose of obtaining legal advice or for future use in legal proceedings. The claim for privilege in respect of all data downloaded and transmitted also failed for public policy reasons because the plaintiff deliberately wiped the phone's memory. However, the court found that the customised reports were privileged as they were brought into existence for the dominant purpose of communicating or submitting them to the plaintiff's lawyer for use in anticipated litigation or to obtain legal advice.

The court ordered that the customised reports were protected by legal professional privilege, while the initial digital data and the transmitted data were not privileged.