The Search and Seizure of Digital Materials Under Warrant and Protecting Privilege: Comparative Analysis and Recommendations for Best Practice

Abstract

Academic literature in England and Wales and New Zealand does not consider the protection of legal professional privilege where digital material is seized under a search warrant. Academic literature in the United States does engage with this subject but is not informed by a comparative approach. This article fills both gaps. It examines practices that have been developed by investigative teams and prosecuting authorities in all three comparator jurisdictions in their attempts to provide safeguards necessary to preserve privilege. Such practices involve the use of technology to increase the speed, cost effectiveness and/or efficiency of identifying privileged documents. The process of developing these practices has been informed by judicial guidance, where they have been challenged before the courts, and by guidance from government departments, Bar Associations or Law Commissions. Following comparative analysis, the article recommends measures that should be included in legislation, codes of practice or guidance in any jurisdictions where there is potential for legal professional privilege or an equivalent concept to be undermined when digital material is seized under a search warrant.