In the context of criminal proceedings, all documents can generally be seized, except for those held by an attorney enrolled with the Italian bar and whom has been granted a valid power-of-attorney under article 391-nonies of the Italian Code of Criminal Procedure, to carry out the so-called defensive investigations.

When a confidential document is held by the client, the attorney could invoke the existence of professional secrecy connected to the right of defense of the defendant (for example, because the document has been drafted in preparation of litigation). If the public prosecutor decides to seize such document, the attorney will have to challenge the future use of such document in the criminal proceedings based on the fact that such document represents evidence collected in violation of the law.

In the context of civil litigation, in contrast to common law jurisdictions, the disclosure of documents is considered an exceptional measure. Only in certain limited cases and under specific conditions, either upon request of the parties (i.e., plaintiffs or defendants) or because the judge believes that it is crucial to collect certain documents, the judge may order the plaintiffs, defendants or third parties, to file documents with the court. It must be noted that under Italian law judges may only order the submission of documents: (i) which judges deem necessary to resolve a crucial issue of the case, and only when such issue may not be resolved in a different way; and (ii) when such documents have been clearly identified and it is certain that they exist. In any case, disclosure is not allowed to circumvent the rules concerning the burden of proof.

When a governmental regulator requires a lawyer to disclose documents, under the Professional Code of Conduct the lawyer can refuse to provide any confidential documents covered by professional secrecy. In some instances, the Italian Antitrust Authority has simply seized the privileged document without regard to its nature, whilst in other cases the same authority has not physically seized the document but nonetheless read its contents during the inspection in order to get a picture of the purpose of the legal opinion and possibly clarify some relevant issues or facts. In order to avoid such situations, it is common practice amongst antitrust practitioners to have an attorney closely shadowing inspectors from the Italian Antitrust Authority during all phases of an investigation so as to be able to immediately oppose the seizure of privileged documents protected by professional secrecy.

There is neither a specific legal provision nor jurisprudence stating that notes of interviews with employees are covered by privilege. Based on the general rules, notes of interviews with employees are covered by privilege only if such notes can be described as documents related to the defense strategy or investigations, unless such notes were prepared by in-house counsel. In the latter case, judges are entitled to expressly authorize privilege over such notes, based on a case-by-case assessment. For the sake of completeness it is worth noting that there are commentators saying that privilege attaches to notes of interviews even if certain requirements are missing (e.g., case number) provided that it is undisputable that such notes are part of communications to Italian lawyers empowered by a valid power-of-attorney under article 391-nonies of the Italian Code of Criminal Procedure, to carry out the so-called defensive investigations.