Hot Off The Bench: e-Discovery and Privilege (Part One)

​Electronically stored information continually changes the nature and process of discovery. It also brings into focus various aspects of substantive law, including the issue of privilege.

On March 25, 2013, Master Macleod released his reasons in the case of Kaymar Rehabilitation Inc. and Champlain Community Care Access Centre, 2013 ONSC 1754. The primary issues before him were: 1) the existence and duration of litigation privilege and 2) whether privilege that arose in previous proceedings in another forum continued to apply (the litigation case had related administrative proceedings). All of the disputed records were emails.

After re-affirming the “virtually sacrosanct” nature of solicitor client privilege (para. 45), the court’s analysis turned to litigation privilege, summarized as follows:

a. The dominant purpose test continues to be the cornerstone of evaluating litigation privilege;
b. The purpose of the privilege is to allow a necessary zone of privacy to preserve a party’s litigation strategy;
c. Litigation privilege includes settlement strategy, mediation, pre-trial or settlement meetings;
d. It ends once the purpose it was intended to serve is over;
e. If subsequent litigation is essentially a continuation of the “same legal combat” (despite different parties) and the privileged record relates to the strategy in the new litigation, the privilege should survive;
f. Litigation privilege may (but will not automatically) survive between proceedings in various forums (administrative proceedings, arbitration, litigation). In all cases, the court will examine closely the purpose for which a record was created, and the purpose served by permitted its continued suppression. (para. 63)

Ultimately, the court applied these rules to a collection of emails, making specific findings on each. As a result, this is a valuable decision in terms of evaluating privilege calls in a contextual way.

​In Part Two we will examine Master Macleod’s commentary on the parties’ Discovery Plan and whether court inspection of disputed documents remains a viable procedure in the electronic age.