3. Litigation Privilege

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 235-244

Contenidos

• 3. 1) The Rationale for the Privilege.
• 3. 2) The Dominant Purpose Test.
• 3. 3) The Status of Copies.
• 3. 4) The Implied Undertaking Rule.

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Communications between a lawyer and third persons are privileged if, at the time of the making of the communication, litigation was commenced or anticipated and the dominant purpose for the communication was for use in, or advice on, the litigation.

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In the course of providing legal advice to a client, a lawyer will need to interview witnesses, consult with experts, and undertake copious research on the law - to name but a few tasks. The lawyer accumulates a great deal of information and the claim of privilege is made, often under the rubric of solicitor-client privilege. This term is a misnomer. Client confidences may or may not be involved. Consider this situation:

In a personal injury action the lawyer for the plaintiff hires an investigator to find and interview potential witnesses to the accident. The investigator uncovers a number of witnesses and obtains signed statements from each.

In this situation there are no client confidences involved. The witnesses are giving a statement with little or no expectation that it will be kept confidential. In fact, they no doubt anticipate being called to testify and to tell all. The statement, if it is privileged, has nothing to do with solicitor-client confidentiality; rather, the material is protected by way of litigation privilege, which is also called "work product," "solicitor-third party," or "anticipation of litigation" privilege.

3. 1) The Rationale for the Privilege

It had been argued that litigation privilege was but a branch of solicitor-client privilege. This argument was laid to rest in Blank v. Canada. In the words of Justice Fish it is preferable to recognize that they are "distinct conceptual animals" and not "two branches of the same tree."⁷¹

Litigation privilege is separate and distinct from solicitor-client privilege in the following ways:

· The rationales underlying the two privileges are different. Solicitor-client privilege exists to protect the relationship; litigation privilege exists to facilitate the adversarial process. This privilege is based on the adversary system, which encourages the opposing parties to prepare their respective cases as best they can. The parties would be loath to do so if they had to turn over the fruits of their preparation to the other side.⁷²· Solicitor-client privilege exists any time a client seeks legal advice, whether or not litigation is involved. Litigation privilege applies only in the context of litigation.

· Solicitor-client privilege is permanent and survives the termination of the relationship. Litigation privilege is temporary and ends with

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the litigation. Once the litigation is over there is no longer a need to maintain the adversarial protection.

· Solicitor-client privilege is meant to protect client confidences. Litigation privilege does not require that the communications be made in confidence.

· Solicitor-client is recognized as the "highest" privilege, not lightly to be overridden. Litigation privilege is far more likely to be truncated.

In Blank, the key issue was whether litigation privilege had expired or was protected permanently under the rubric of solicitor-client. Blank and a company he was associated with were initially prosecuted by the federal government for pollution offences. The charges eventually were dropped. Mr. Blank then began a long saga in the courts by suing the government in damages for fraud, conspiracy, perjury, and abuse of its prosecutorial powers. He wanted disclosure from the government of documents related to the earlier pollution prosecutions. The government claimed that they were privileged by way of solicitor-client. The Supreme Court of Canada found that the documents were caught by litigation privilege and that the privilege ended with the litigation. However, the Court did go on to recognize that the privilege may transcend the particular litigation. Closely related litigation may still be ongoing and in this case the litigation privilege continues. Justice Fish explained the parameters of "litigation" in the following terms:⁷³At a minimum, it seems to me, this enlarged definition of "litigation" includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action (or "juridical source"). Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

The example given in Blank was that of the urea formaldehyde insulation litigation. In the 1980s the federal government confronted litigation across Canada arising out of its urea formaldehyde insulation program. The parties were different and the specifics of each claim were different but the underlying liability issues were common across the country.⁷⁴In Blank the documents at issue originated in the criminal litigation, which had ended. The civil litigation sprung from a different judicial source and was unrelated to the criminal prosecution, which gave rise to the privilege.⁷⁵Accordingly, it was found that the documents were not

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caught by litigation privilege and ought to be disclosed. Following Blank it has also been found that litigation privilege arising from a civil case was not protected in a criminal prosecution arising from the same incident.⁷⁶The line between litigation privilege and solicitor-client privilege blurs at times. It is well settled that solicitor-client privilege can extend to certain third-party communications. The law often speaks in terms of these third parties being "agents" of either the solicitor or the client. The clearest example is where the third party merely acts as a channel or conduit of communication between the client and the solicitor, as with a translator or messenger. Solicitor-client privilege also extends to communications where the third party employs an expertise in assembling and explaining information provided by the client. For example, solicitor-client privilege applies when the lawyer engages an expert to examine the client. In this situation the expert is an agent of the lawyer, and the client’s statements to the expert are as privileged as if they were made to the lawyer herself.⁷⁷"Agency" for our purposes is not to be determined under the law of agency. Justice Doherty suggests a functional approach, where the court looks for the true nature of the function that the third party was retained to perform.⁷⁸That function must be essential to the existence or operation of the solicitor-client relationship. In Smith v. Jones it was essential that the expert examine and explain the client’s mental condition for the lawyer. On the other hand, if the third party is only authorized to gather information from outside sources, the third party’s function is not essential to the maintenance or operation of the solicitor-client relationship and does not fall under that privilege. For example, a private investigator engaged to investigate and interview witnesses is a gatherer of information, but the fruits of his investigation do not fall within solicitor-client privilege. The solicitor-client privilege is intended to allow the client and lawyer to communicate in confidence. It is not intended to protect communications or other material simply deemed useful by the lawyer in advising the client.⁷⁹Litigation privilege is designed to establish a "zone of privacy" for the preparation of litigation and no more.⁸⁰The competing trend is towards

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greater disclosure both in civil cases and on the part of the Crown in criminal cases...