Request for access to audio recordings from a meeting with lawyers must be reconsidered

Kistefos AS and Kistefos Investment AS have brought a claim for damages against Pareto AS, which acted as financial advisor in connection with the refinancing of the shipping company Solstad Offshore ASA. During the preparatory phase of the proceedings, Kistefos requested access to an audio recording from a negotiation meeting between Solstad and Aker Capital AS. Pareto participated in the meeting and is legally obliged to make recordings under the Securities Trading Act. Advocates advising Solstad and Aker were also present.

The Supreme Court was asked to determine whether access to the audio recording must be denied on the grounds that it contains information protected by the prohibition of evidence in section 22-5 of the Dispute Act. This provision safeguards communications between advocate and client.

The Court of Appeal ordered Pareto to disclose the recording, whereas the District Court reached the opposite conclusion.

The Supreme Court held that both the Court of Appeal’s and the District Court’s rulings had to be set aside due to a misinterpretation of section 22-5 of the Dispute Act. The evidentiary prohibition entails that communications between legal counsel and client may only be disclosed if the party entitled to confidentiality consents or has acted in a manner that implies a waiver of the protection. The fact that the parties shared confidential information during a negotiation meeting does not, in itself, mean that confidentiality must be deemed waived in relation to Kistefos in a subsequent legal dispute.

Accordingly, the question of whether Kistefos should be granted access to the audio recording must be reconsidered by the District Court.

The judgment provides guidance on the scope of the evidentiary prohibition in section 22-5 of the Dispute Act where information has been disclosed to a third party.

Read the order from the Supreme Court (Norwegian only) (PDF)

Aeras of law: Civil procedure. Evidentiary prohibition. Section 22-5 of the Dispute Act.  

Key paragraphs: 59–61

Justices: Bull, Høgetveit Berg, Steinsvik, Sæther, Sivertsen