0  Law Commission Report CHAPTER 12: Privileged and confidential material The dilemma which arises is that mere inspection of documents during execution of a warrant does not amount to seizure per se, but such inspection would nevertheless cause the privilege to be lost. Yet proper execution of a search warrant often requires a period of temporary possession before seizure, for the purposes of examination. a preliminary assessment of potentially privileged material is counter to the policy behind the privilege. a  ny possibility that the agency may view privileged material is likely to create a perception that the material will inform the investigation and therefore potentially discourages free and frank communications between lawyer and client. The resulting situation is something of a c atch 22: an agency cannot tell whether information is privileged without looking at it, but by looking at it, may undermine the privilege.⁶⁰ 12.29 Fourthly, enforcement agencies may not have sufficient technical expertise to assess the privileged status of a document, given the complexity and detail of the law in this area.⁶¹ 12.30 Fifthly, there is currently no duty on enforcement agencies to advise search subjects of their right to claim the privilege, other than the obligation to provide an opportunity for lawyers to claim the privilege on behalf of clients where this is a required condition of the warrant. The ability of a search subject (other than a lawyer) to assert the privilege is limited, given the lack of awareness of the privilege and its technical nature. The ability to claim the privilege is also negated where the search subject is not present during the search. 12.31 We have also identified particular difficulties for enforcement agencies in observing the requirements for search warrant applications and their execution where the search involves intangible material that may be privileged, as highlighted in recent case law. 12.32 First, the authority for enforcement agencies to make forensic copies of intangible material that may include privileged material is at best uncertain. in Calver v District Court at Palmerston North,⁶² Miller J determined that a search warrant issued under section 198 of the Summary Proceedings act 1957 could not authorise the removing and forensic copying of a hard drive known to contain privileged material. conversely, in JMA Accounting Pty Ltd v Federal Commissioner of Taxation,⁶³ it was held that merely seizing a document without reading it would not infringe the privilege. in A Firm of Solicitors v District Court at Auckland,⁶⁴ the court of appeal considered that, subject to appropriate safeguards, a computer hard drive could be forensically copied under a Serious Fraud Officea ct search warrant, so long as the officers did not access the hard drive until privilege claims could be made and, if necessary, resolved. h owever, the court of appeal expressed no view on how its decision might apply to searches under other statutory provisions. 60   The dilemma is noted in A Ltd v The Director of the Serious Fraud Office , above n 50, para 87. Nevertheless, in JMA Accounting Pty Ltd v Commissioner of Taxation, above n 50, paras 14-15, it was held that it may be proper for an officer to assess privileged or potentially privileged information, described as a glawful violationh of the privilege. 61   Baker v Campbell, above n 4, 83. 62   Calver v District Court at Palmerston North, above n 52, paras 59, 82. 63   JMA Accounting Pty Ltd v Federal Commissioner of Taxation, above n 50, paras 13 and 23. 64   A Firm of Solicitors v District Court at Auckland, above n 54, para 111.