In Canada, discovery in civil litigation is governed by the Rules of Court or Rules of Civil Procedure. At the Federal Courts, the Federal Courts Rules govern the commencement and conduct of proceeding, while in the provinces such as Ontario, the Rules of Civil Procedure apply. These Rules also contain provisions relating to documentary disclosure. Rules 222 – 233 of the Federal Courts Rules deal with documentary disclosure, and Rules 30 of the Ontario Rules apply to documentary discovery in the province on Ontario.
In both Rules, document was defined to include electronically stored information or information readable by means of a computer system or similar device. The Rules provide for disclosure and production to the adverse party of copies of relevant documents in the party’s possession and control. It imposes a dual discovery obligation on the parties – duty to disclose the existence of all relevant documents in the party’s possession and control, and the duty to produce for inspection to the other party(ies) all relevant documents for which the party (in possession and control) does not assert any claim of privilege.
The disclosure obligation under the Rules is discharged through the preparation and service on the other party of Affidavit of Documents which lists and describes all relevant documents in the party’s possession. The duty to produce relevant documents (except for those which the party asserts privilege) is discharged if upon request, the party in possession or control avails the requesting party a reasonable opportunity to inspect the document, and/or deliver to the other party copies of the relevant documents.
Thus documentary disclosure under the Rules of the Court would typically involve review by a party of documents in its possession or control (document review). The review is usually conducted by a review team composed of lawyers and other legal personnel such as paralegals. The document review will involve a two stage process – review of documents for relevancy, and for privilege.
At this stage, the party reviews documents in its possession or control to determine those that are relevant to the litigation. A document is deemed to be relevant “if the party intends to rely on it or if the document tends to adversely affect the party’s case or to support another party’s case.” Relevancy review thus requires a bona fide review by the party as it is obligated to disclose (as relevant) document related to the litigation which are beneficial or adverse to its interest. Effective relevancy review will require a good understanding by the reviewers of the facts in issue, and this could be gleaned from the pleadings filed by the parties. Document which are identified as relevant at this stage of the review, will then proceed to another stage of the review.
Document which are identified as relevant are subject to further review for privilege. While parties have a duty to disclose all relevant document, the obligation is subject to valid claim of privilege. Hence the privilege review stage involves identifying documents that contain privileged information for the purpose of excluding the documents from disclosure, or redacting the privileged information before disclosure. Privilege review is usually one of the most critical and sensitive aspects of document review. Thus it would require detailed knowledge of the different types of privilege.
Various types of privilege which could be asserted by a party in documentary disclosure includes solicitor-client privilege, litigation privilege, negotiation privilege, public interest privilege, cabinet confidence etc. While some basic types of privilege apply in all document review process, others may be unique to a particular party in the litigation. For example, while cabinet confidence as a form of privilege may apply to privilege review by a government agency or department, that may not apply to a review being conducted by a private or commercial organization. Some the common types of privilege encountered in document review are briefly described below.
Solicitor-client privilege is the most vital of all privilege recognized by law. It applies to all confidential communication between a lawyer and client (or prospective client) related to the seeking, formulating or giving of legal advice. The privilege may also apply to communication to or from a third party where the third party acts as an intermediary between the lawyer and the client. The privilege is so vital that it outlives the litigation and cannot generally be waived by the lawyer without the consent of the client. Documents that fall into this category includes email correspondence from a lawyer providing legal advice to the client. Though in L’Abbe v. Allen-Vanguard, 2011 ONSC 7575 (CANLII) the court took the position that merely attaching a document to a privileged emails does not necessarily (without more) render the attachment privileged. However, any documentation revealing the content of confidential communications between the lawyer and client are similarly privileged.
Litigation privilege on the other hand applies to documents prepared in contemplation of litigation. All document prepared for the dominant purpose of prosecuting or defending a litigation or a reasonably contemplated litigation are subject to this form of privilege. The purpose of this privilege is to “create a zone of privacy in relation to pending or apprehended litigation”, and to protect the litigation strategy in an adversarial proceeding. It covers documents prepares by the lawyer (attorney “work product”) as well as documents containing communication between the lawyer and third parties on matters relating to the prosecution or defence of the litigation. Examples of such documents include reports prepared by investigators hired by counsel, communications with experts on matters relating to the litigation, notes of interviews with third parties as part of preparation for the litigation.
Negotiation privilege attaches to confidential communications made with an adverse party in litigation for the purpose of settlement of the matter in dispute. Such document may expressly contain the phrase “without prejudice”, though the absence of such phrase may not necessarily disentitle a claim of privilege where it is obvious from the content that the communication was made for the purpose of settlement of the matter. Also, the inscription of the phrase “without prejudice” in a document does not without more confers privilege to the document. Thus, it is important to properly review the content of the documents before making a determination as to whether negotiation privilege attaches. Documents that may be subject to this privilege are formal offer of settlement, as well as response to the offer. These are specifically protected under Rule 49.06 of the Ontario Rules of Civil Procedure.
Waiver of privilege
The waiver of privilege may be express or implied. In the context of civil discovery, waiver could take the form of disclosure of the document to the opposing party. By disclosing the document, the disclosing party is either expressly or impliedly indicating that it does not intend to assert the privilege. The issue becomes complicated where the disclosure is inadvertent. While privilege may be waived by a party entitled to rely on it and who intends to waive the privilege, inadvertent disclosure becomes problematic because of the absence of intention to waive. However, even in the absence of such intention, the court in L’Abbe v. Allen-Vanguard noted that privilege may be lost as a result of inadvertent disclosure “based on considerations such as the manner of disclosure, the timing of disclosure, the timing of reassertion of privilege, who has seen the documents, prejudice to either party and the requirements of fairness, justice and search for truth.”
Inadvertent disclosure could arise from failure to identify privileged document during the process of document review. Even the most diligent review, whether manual or electronic, can result in inadvertent disclosure. This is usually the case where the document set involved in the review process is large. It is important for the party to timely reassert privilege in the event of inadvertent disclosure. However, Master C. MacLeod in L’Abbe v. Allen-Vanguard cautioned that while “[i]nadvertence will not by itself amount to waiver but this does not mean the court will protect a party from reckless release of privileged documents. In any event notwithstanding the attempt to reassert privilege, the court may determine that privilege has been lost”.
The parties may seek to address the problem of inadvertent disclosure by way of a clawback agreement. While this clause may aid a party in recalling inadvertently disclosed privileged documents, and also prevent the opposing party from using the document in court, the fact though is that clawback agreement provides insufficient protection. A privileged document seen by the opposing party cannot be unseen. According to Wang:
With lax privilege review, there is a greater probability that a privileged document will be revealed, and even if the opposing party cannot use the document in litigation, it will have seen it, likely be unable to forget it, and be able to use the information to strategize for its case. Thus privilege review is a very delicate aspect of document review in the discovery process. It requires meticulous attention to details. This aspect of the document review process ought to (and should) be handled with utmost caution and by very qualified legal professionals with deep knowledge of the various types of privilege as well as skills in detecting privileged documents in the review process.