Legal Definitions - strict test

The strict test is a legal standard used to determine whether the attorney-client privilege has been lost, or "waived," when a confidential document is accidentally revealed to an opposing party or a third party. Under this test, if a document protected by attorney-client privilege is disclosed, even unintentionally, the privilege is generally considered waived for that document. The only way to avoid this waiver is if the party claiming privilege can demonstrate that every conceivable precaution was taken to prevent the disclosure. It sets a very high bar for maintaining confidentiality after an accidental release.

Here are some examples illustrating the application of the strict test:

• Email Error in Litigation: A lawyer is preparing to send a discovery response to opposing counsel. While attaching several non-privileged exhibits to an email, they inadvertently attach an internal memo discussing litigation strategy—a document clearly protected by attorney-client privilege—instead of the correct, non-privileged exhibit. The email is sent and received by the opposing counsel.

  Under the strict test, the attorney-client privilege for that memo would likely be considered waived. The court would examine whether "all possible precautions" were taken to prevent this disclosure. While it was an accident, simply attaching the wrong document might not meet the high bar of demonstrating that every conceivable step was taken to prevent its release, especially if there wasn't a robust, multi-step review process in place for outgoing emails containing sensitive attachments.

• Mass Document Production Oversight: During a large-scale document production in a complex corporate lawsuit, a company's legal team uses sophisticated e-discovery software and a team of contract reviewers to identify and redact privileged information from hundreds of thousands of documents. Despite these efforts, one highly sensitive email chain between the company's CEO and its in-house counsel, discussing a confidential legal risk assessment, is mistakenly included in a production batch sent to the opposing side.

  Applying the strict test, the company would face a significant challenge in arguing that the privilege was not waived. Even with advanced software and a dedicated review team, the test requires demonstrating that every possible precaution was taken. The mere fact that the document was produced, even accidentally within a massive volume, suggests that some precaution, however minor, might have been overlooked, leading to a waiver of the privilege for that specific document.

• Physical Document Mishandling: A junior associate at a law firm is working late on a confidential client matter. They print a draft legal opinion containing privileged advice and leave it on a shared network printer in a common area of the office overnight. The next morning, a cleaning staff member, who is not an employee of the firm and not bound by confidentiality agreements, finds the document and briefly glances at its contents before placing it in a recycling bin.

  In this scenario, the strict test would likely lead to a finding that the privilege was waived. Leaving a privileged document unattended on a shared printer, where it could be accessed by unauthorized individuals (even if just briefly seen by cleaning staff), would generally not be considered "all possible precautions." The firm failed to ensure the document's security, even if the disclosure was brief and unintentional, thus potentially losing the attorney-client privilege for that document.