COMMUNICATION
KEEPING
A LID ON IT Managing your communication to effectively preserve privilege
F
ar before a construction project results in a dispute, prudent parties need to carefully consider the nature of their communications and the issue of “discoverability” in any potential litigation that may result. In Canada, each party to a lawsuit is required to disclose to the opposing parties all documents relevant to the case. Many people and businesses are unaware that this obligation extends even to internal documents and correspondence that touch on the subject matter at issue. This includes internal emails, text messages, financial statements – all of it. In Quebec, this obligation is somewhat narrowed as parties are only required to disclose the relevant documents that have been requested by another party to the litigation. But there are exceptions to these rules. Understanding these exceptions and acting proactively to manage their applicability may allow parties to keep particularly damaging evidence shielded from production and/or out of court.
SOLICITOR-CLIENT PRIVILEGE Communication between a lawyer and their client is protected from disclosure in litigation so long as that communication was transmitted for the purpose of giving or receiving legal advice. As a general rule, for communication to be captured under this category of privilege, it must be: • An oral or written communication • Of a confidential character • Between a client (or their agent) and a legal advisor, and • Directly related to the seeking, formulating, or giving of legal advice The last of these items is particularly significant, as lawyers, and in particular in-house counsel, can serve various roles in an organization, such that their presence in a meeting or on an email chain is not enough, on its own, to ensure privilege attaches to
22 / APRIL 2021
that communication. Solicitor-client privilege is the most staunchly protected category of privilege in Canadian law. If sensitive internal discussions are taking place, including a lawyer in this correspondence and seeking their legal advice on the matter will likely insulate this correspondence from disclosure in litigation.
LITIGATION PRIVILEGE Once litigation is reasonably contemplated, all communications and documents prepared for the purpose of preparing the case are also protected from disclosure for the duration of the dispute. This is done to allow for a “zone of privacy” to permit parties to prepare their positions in private without fear of the other side learning about this preparation and strategy. This privilege applies where the communications and/or documents are prepared in contemplation of litigation which is “in reasonable prospect,” and for the “dominant purpose” of use in the litigation. To ensure this type of privilege attaches to internal communications and documents, litigation must be reasonably contemplated. The precise date on which this occurs is often a matter of dispute in challenges to claims of privilege. As a result, clearly identifying when litigation is being contemplated or considered will assist in confidently pinpointing the day from which this privilege attaches.
”WITHOUT PREJUDICE” Perhaps the most misunderstood legal term in the industry, “without prejudice” often finds its way to the headers of letters and the subject lines of emails when parties are engaging in any type of conversation that they wish to be “off the record.” However, simply labeling correspondence “without prejudice” – or “privileged” – does not necessarily mean it is shielded from disclosure or use in court. Also termed settlement privilege, this type of correspondence
DUSANPETKOVIC / ISTOCK / GETTY IMAGES PLUS / GETTY IMAGES
BY JOHN SINGLETON AND GRAHAM HENRY
