Managed review projects generally involve a team reviewing records that are to be produced to opposing counsel. Sometimes though, the review is conducted by a recipient party who is reviewing an opposing party’s records that have already been reviewed or assessed for relevance and privilege.
In those cases, review lawyers must have clear instructions on how to react if they discover privileged records produced by opposing counsel. In some cases there may be a claw-back agreement governing the steps to be taken if there is inadvertent production of privileged records. If no agreement is in place, the rules of Professional Conduct and the common-law may govern.
A recent decision, R. v. Ward, 2016 ONCA 568, affirmed that inadvertent disclosure of a letter between an individual and their lawyer did not waive solicitor-client privilege. The court relied on the Supreme Court decision in R. v. McClure which held that solicitor-client privilege may only be set-aside very rarely.
Sedona Canada principle 9 contains helpful commentary about inadvertent disclosure of privilege and sanctions. Accordingly, managed document review should always include clear procedures for reviewers to immediately identify and escalate any concerns about inadvertently disclosed privileged records.