Electronically stored information presents unprecedented challenges to counsel who have a duty to protect privileged information. Predictably, the risk of inadvertent disclosure of privileged records rises proportionately with the volumes of information being produced. As counsel, we must bear in mind that preserving privilege is of paramount importance.
This principle was recently confirmed by the Supreme Court of Canada in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association 2010 SCC 23 (CanLII). In its decision, the Court confirmed the “near absolute character of solicitor-client privilege”. Citing the SCC decision of R. v. McLure , 2001 SCC 14 (CanLII), the Court reiterated:
… solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. [para. 35]
While the recent case relates to a constitutional issue involving solicitor-client privilege and not general discovery per se, it is clear that Canada’s highest court continues to be willing to zealously guard the doctrine of privilege. It is inside this framework that potentially privileged information must be carefully reviewed and appropriately protected from inadvertent disclosure in every case.
If you require assistance with reviewing electronically stored information for privilege or with the drafting of a non-waiver agreement to protect you and your client in the event that privileged documents are inadvertently produced, please contact Wortzman Nickle.