Can a ‘copy’ of a database be privileged where the original (and unmodified) database isn’t privileged or doesn’t even exist anymore? Lessons from a Federal Court ruling
In December 2025, the Federal Court of Australia delivered a ruling in Greensill Bank AG v Insurance Australia Limited (Privilege Dispute) [2025] FCA 1543, holding that a copy of a business database (the original of which was not privileged and no longer existed in an unmodified format) was protected by legal professional privilege (LPP), allowing it to be shieled from disclosure in litigation relating to the collapse of the Greensill Group, a major supply chain financing company.
Facts
The case involved a company called BCC Trade Credit Pty Ltd (BCC), which used a cloud-based software application called the ‘Credit Insurance Suite’ (CIS Database) to store and access its insurance policy data. The database was provided by a third party, Tinubu Square SA (TSA), and was ‘live’, in the sense that it was constantly altered in the ordinary course of business.
In mid-2020, Tokio Marine Management (Australasia) Pty Ltd (Tokio Marine) became aware of an underwriting incident involving BCC's Head of Trade Credit (Incident).
Tokio Marine engaged HWL Ebsworth Lawyers (HWLE) to provide legal advice in relation to the Incident. HWLE itself then engaged McGrathNicol Advisory (MGN) to provide forensic accounting assistance, including by providing a report to HWLE.
There was no question that the report prepared by MGN for HWLE was privileged.
To carry out the work requested by HWLE, MGN requested access to the CIS Database. TSA subsequently provided MGN with access to the CIS Database as it existed on 17 August 2020.
The Applicants in the proceeding sought orders requiring the production of the copy of the CIS Database held by MGN (as at 17 August 2020).
Issues
The Applicants made 2 arguments in support of their application for production of the copy of the CIS Database held by MGN:
the ‘copy’ held by MGN was not protected by LPP; and
if the copy was subject to LPP, then LPP was lost given the circumstances giving rise to the creation of the copy, namely, where litigation was contemplated, Tokio Marine failed to retain an unmodified version of the CIS Database.
Court Decision
Justice Thawley upheld the claim for LPP over the copy of the CIS Database and dismissed the application for production.
Was the copy privileged?
In respect of whether the copy of the CIS Database was subject to LPP, the Court found that MGN received a copy of the CIS Database so that it could fulfil its engagement with HWLE so that HWLE could provide Tokio Marine with the legal advice about the Incident; the copy of the CIS Database was created for that purpose. The Court observed that it did not ultimately matter whether the copy of the CIS Database was created by TSA or by MGN – it was subject to LPP because it was ‘plainly created’ so that legal advice could be given to Tokio Marine.
The Court also held that the copy of the CIS Database was privileged, regardless of whether the database, in its original form, was privileged, again, because the purpose of the creation of the copy of the CIS Database was so that Tokio Marine could obtain legal advice about the Incident.
Was privilege lost in light of alterations made to the database?
In respect of whether the LPP in the copy of the CIS Database had been lost, the Court observed that:
where a copy of a document, used to obtain legal advice, is created to allow the original document to be destroyed, then the copy document could not be subject to LPP in light of the ‘gross impropriety’ involved in the destruction of the original document;
the Applicants did not allege that the creation of the copy of the CIS Database was ‘infected by an improper purpose’; and
LPP in a copy document is not lost just because the original no longer exists.
The Applicants argued that LPP in the copy of the CIS Database had been lost because:
when the copy was created, Tokio Marine had the intention of modifying the original version of the CIS Database, which had in fact occurred;
the modifications may have been relevant to the issues the subject of the proceedings; and
Tokio Marine had not retained a version of the CIS Database in its original, unmodified format which could be disclosed in the proceedings.
The Court rejected that LPP had been lost, finding that whilst Tokio Marine was aware that the CIS Database would be modified, given that it was ‘live’, it did not intend to destroy the original, non-privileged version (via the modifications made to it), whilst at the same time intending to retain the privileged copy given to MGN; the Court was not satisfied that Tokio Marine knew that the modifications made could be relevant to future legal proceedings.
The Court concluded that the Applicants’ argument simply amounted to an implicit criticism of Tokio Marine for failing to maintain a non-privileged copy of the CIS Database in an unmodified format; the Applicants did not link that criticism to any alleged breach of any ethical or legal obligation (e.g. some ‘gross impropriety’ or ‘improper purpose’) such as to require the Court to conclude that ‘upholding the privilege would allow privilege to be used for a purpose alien to the purpose underlying the privilege’.
Takeaways
The outcome of this case demonstrates that:
the reason why a document is created (i.e. the dominant purpose for its creation), including a copy of a non-privileged document, determines whether LPP attaches to a document;
it is important that proper engagements with lawyers and third parties (e.g. by lawyers directly retaining third parties to assist in the giving of legal advice) are established to protect LPP. Those engagements can extend beyond litigation and could be to provide clients with legal advice about particular transactions or conduct they are considering pursuing or may relate to internal reviews or investigations, including for insurance purposes;
the fact that versions of original documents are not maintained or stored does not, in and of itself, prohibit LPP subsisting in copies or subsequent versions of those documents – it all comes back to why the document the subject of a LPP claim was created; and
the courts will not allow LPP to be used for an improper purpose – had the Court in this case found that Tokio Marine had the intention of destroying the original version of the CIS Database to make it unavailable for future legal proceedings, whilst at the same time seeking to shield the copy of the CIS Database from production, then the outcome in this decision may have been different. Entities should ensure that they have clear, transparent and legitimate document management and retention policies that address the storage, maintenance and access requirements for documents.
If you have any questions about this article or the issues it raises, please contact us.
Alicia Hill
Principal
T: +61 3 9611 0180 | M: +61 484 313 865
E: ahill@sladen.com.au
Jake Cole
Special Counsel
T: +61 3 9611 0112 | M: + 61 413 557 157
E: jcole@sladen.com.au
This article was prepared with the assistance of Tony Huang, Law Clerk.
