You have a pile of documents from different places and you are about to quote one in a letter, send it to someone, or upload it to an AI tool.
Every document in one of four bins, a register that records how each one arrived and what that permits, and a folder structure that keeps the locked material away from everything else.
A NSW civil litigation solicitor specialising in discovery and confidentiality.
Whether a particular document is caught by a court obligation, a confidentiality clause or privilege is a legal question that depends on how it reached you and what has happened since. The safe order is: sort first, treat doubtful material as locked, and get specific advice before using anything from the locked bins outside the proceeding. Free services that can answer that question are listed on the Get help page.
The central rule
Two copies of the same page can carry different rules. One that you already had in your own inbox is yours to use. One that the other side was forced to hand over by a court process is locked to that proceeding until the court says otherwise. The content is identical. The permission is not.
Self-represented people get caught here more than anywhere else, because nobody tells them. A solicitor learns the implied undertaking in their first year and never thinks about it again. A person handling their own matter finds out when the other side's letter arrives, usually after the document has already gone somewhere it should not have.
The four bins
A document can sit in more than one bin. A discovered document containing a third party's medical history is both compelled and confidential. Apply the most restrictive rule. The bins are a working system for you, not legal categories a court will recognise by those names.
The sorting questions
Ask all four for each document. Restrictions add up: a document can be compelled and confidential and contain someone's personal information, and each restriction applies. Sort by the first yes, then note every other yes.
- Did a court process make someone hand this over? Discovery lists, subpoena returns, answers to a notice to produce or interrogatories, output of a court-ordered inspection, affidavits or reports served because a timetable required it. If yes: Compelled.
- Is it legal advice, work done for the case, or a settlement communication? Advice from a lawyer, your own notes prepared for the litigation, anything headed "without prejudice", a mediation document. If yes: Privileged / without prejudice. If it is the other side's and you were not meant to have it, stop here and read the section below.
- Does a duty of confidence attach to it or to someone in it? A confidentiality clause in a contract, health or personal information about another person, a court order restricting publication. If yes: Confidential.
- None of the above? Clean. Record how you got it anyway, because you may need to prove that later.
If you hold a document because it was emailed to you in the ordinary course, and the same document later turns up in discovery, your original copy stays clean. Use that copy and cite where it came from. If your only copy came through the court process, it is compelled, however ordinary its contents.