Clean, confidential or compelled? — Self Rep Ready
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A sorting rule nobody explains NSW 4 min read

Clean, confidential or compelled?

Every document in your matter came to you in one of a few ways, and the way it came decides what you may do with it. Sort them once, label them, and you stop guessing at 11pm about what you are allowed to upload, quote or send.

Use this when

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.

Leave with

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.

Verify with

A NSW civil litigation solicitor specialising in discovery and confidentiality.

This page describes rules; it cannot apply them to your documents

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

Where it came from decides what you may do with it

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

Record every restriction that applies. Sort by origin, not by content.
BinHow it reached youWhat that usually means
CompelledA court process made someone produce it: discovery, subpoena, notice to produce, interrogatories, an inspection order, material served because an order required it.Use only for the proceeding it was produced in, until the court releases it or it is received in evidence in open court (and even then subject to any continuing orders). Never into an AI tool: that is this site's policy, stricter than the conditional rules in the NSW Supreme Court's practice note.
ConfidentialA contract, a statute, a court order or someone else's privacy attaches to it: employment confidentiality terms, health or personal information, a suppression or non-publication order.Usually usable in the proceeding, with care. Not for publication. Redacted working copy only, if it must go near an AI tool at all.
Privileged / without prejudiceLegal advice, documents made for the dominant purpose of the litigation, or genuine settlement communications. A "without prejudice" heading does not by itself make a letter privileged. Yours, or the other side's sent by mistake.Yours: protect it; think hard before it leaves your machine. Theirs by mistake: stop reading, tell them, get advice.
CleanYour own documents; letters and emails sent to you directly; public records and judgments; anything you obtained independently and lawfully before or outside any court process.Not locked by a court process, but still subject to any confidentiality, privacy or other law that attaches. Upload only after the permission check, not merely the service's settings.

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.

  1. 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.
  2. 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.
  3. 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.
  4. None of the above? Clean. Record how you got it anyway, because you may need to prove that later.
Independent copies

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.

General information only, not legal advice. Whether a court obligation, a confidentiality duty or privilege applies to a particular document depends on how it was obtained, the rules of the court it was produced in, and events since. The rules described are those of NSW courts under the Uniform Civil Procedure Rules and the Evidence Act 1995 (NSW); federal and other state courts have their own rules. Obtain specific advice before using restricted material outside the proceeding. All names, documents, dates and events in the examples are fictional. Last reviewed: September 2026.