Parties to a lawsuit are generally required to produce all documents in their possession or control that are relevant to the matters at issue in the lawsuit. However, there are exceptions to this general rule. Documents that are properly subject to some form of “privilege” can be withheld from production. The three common types of privilege are:
- Lawyer-client privilege;
- Litigation privilege; and
- Settlement privilege.
Lawyer-client privilege protects communications between a lawyer and their client. This type of privilege exists in recognition of the fact that communications between a lawyer and their client are absolutely essential to the integrity and functioning of the legal system. Without it, clients may be hesitant to be forthright with their lawyer resulting in the lawyer not being able to give the client proper advice. For lawyer-client privilege to attach to a communication:
- The communication must be between the lawyer and their client;
- The communication must be made in the course of seeking legal advice; and
- The communication must be made in confidence.
Litigation privilege protects documents made in anticipation of or for the purpose of litigation. This type of privilege exists to allow the parties to a prospective or existing lawsuit to prepare their case without fear that those preparations will be made known to the opposing party. For litigation privilege to attach to a document:
- Litigation must have been a reasonable prospect when the document was created; and
- The dominant purpose of the document was for the litigation.
Settlement privilege protects communications between opposing parties made for the purpose of trying to resolve their dispute. Without it, the parties would be unlikely to have frank discussions about the strengths and weaknesses of each other’s case or make concessions necessary for the matter to be resolved. For settlement privilege to attach to a communication:
- There must be a legal dispute;
- The communication must be made in an attempt to settle the dispute; and
- The communication was not intended to be disclosed in the event the attempt to settle failed.
If privilege attaches to a communication or document, that privilege can be waived:
- Voluntary waiver occurs when the party who has the benefit of the privilege agrees to waive it thus voluntarily making the communication or document known to the opposing party.
- Implied waiver occurs when the party who has the benefit of the privilege does something that, in fairness, requires that the communication or document be disclosed to the opposing party.
- Inadvertent waiver occurs when the party who has the benefit of the privilege accidentally discloses the communication or document to the opposing party. On an application to have that privilege re-attach, the Court will consider if:
- The error in disclosing the communication or document is excusable;
- The party immediately tried to get the communication or document back;
- It would be unfair to the other party to preserve the privilege.