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In the High Court of Justice

DJC Irving

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Penguin Books Ltd and Deborah Lipstadt

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In 1993 American scholar Deborah Lipstadt published Denying the Holocaust, product of a research contract funded by an Israeli agency.

British writer David Irving claims that it libels him.

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David Irving
81 Duke Street

April 20, 1999


Dear Sir


We refer to your fax of 19 April 1999. Responding to point 2 of your letter regarding the videos.

As you know, video 223 is a copy video of two programmes, Dispatches and This Week, broadcast on 27 and 28 November 1991 respectively. Videos 226 and 227 are "rushes" of the programme This Week.

(In your list of videos which you have disclosed under your Third List of Documents, video number 213, although labelled April 1994, is a copy recording of the same Dispatches programme. However, you do not, so far as we are aware, have a recording of the programme This Week or the "rushes".)

The videos numbered 223, 226 and 227 were sent to you inadvertently. They comprise part of privileged communications between ourselves and third parties, for the purposes of advising our client on and preparing her defence. The videos have never actually been in Professor Lipstadt's possession, nor has she seen them. The position as stated in her Affidavit sworn on 20 January 1999 is correct.

Since the litigation began, we have collected numerous documents from third parties for the purposes of this litigation and in particular to assist experts in the preparation of their reports. These documents are covered in Schedule I part 2 of our client's Lists of Documents. The videos numbered 223, 226 and 227 are examples of such documents. Privilege in the videos has not been waived.

However, it is likely that we will be disclosing the videos with our expert reports and thereby then waving privilege in relation to them. Given this, (a) we repeat our request that you return the videos forthwith and (b) we will thereupon copy them for you and provide you with a set.

Accordingly, your Summons now has no further purpose and we trust you will now vacate it.

Yours faithfully




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COMMENT: The arguments advanced here are not those that one would expect from an experienced firm of litigation solicitors with a comprehensive understanding of the rules of Discovery.

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