Two Superior Court decisions released this afternoon contain some interesting observations with respect to the law of privilege. (Admittedly, some of our subscribers might quarrel with the juxtaposition of the adjective, “interesting”, with the phrase, “law of privilege”.)
Before we get to those cases though, a word of apology to those who have recently been trying to have themselves added to our mailing list. We experienced some technical problems for a time, which delayed a response to these requests. However, the issues have now been resolved and our list is up to date.
Back to today’s cases. In Autosurvey v. Prevost et al., Mr. Justice Michael Quigley was confronted with a very unusual problem, but perhaps one that will materialize more often in future, as electronic storage of documents becomes more widespread.
The plaintiff, Autosurvey, had sued Prevost and others, claiming that the defendants had appropriated proprietary software belonging to Autosurvey. After litigation had begun and counsel had been retained on both sides, Autosurvey learned that some data had been removed from its website. It suspected that Prevost was responsible. So, in a form of “self-help”, Autosurvey broke into Prevost’s computer server, to investigate. It copied the entire contents of the server to DVDs, including 29 pieces of correspondence between Prevost and its solicitors, Gardiner Roberts LLP, dealing with this very lawsuit.
Autosurvey’s lawyer learned of his client’s actions after the fact, but did not notify Prevost or its solicitors that Prevost’s survey had undergone what was described as a “brute force entry”. Numerous opportunities for disclosure evidently presented themselves, but Autosurvey and its lawyers remained silent.
When Prevost finally learned of the unauthorized access to its server, it brought this motion, seeking removal of Autosurvey’s solicitors and a permanent stay of the action. Justice Quigley granted both requests and ordered payment of costs on a substantial indemnity basis.
In detailed reasons, His Honour stressed the importance of the solicitor-client relationship to the confidence of litigants in the judicial process. (In addition to having copied solicitor-client communications, of course, Autosurvey had also gained access to confidential commercial information and Quigley J. noted this as well.)
Justice Quigley accepted evidence from Autosurvey’s lawyers, that they had not viewed any of the privileged documents. But His Honour felt that the appearance of impropriety in this case was so great, that the extreme measure of permanently staying Autosurvey’s action, was justified.
Today’s second case on privilege is Sigma Tool and Machine v. Miller Thomson LLP, a decision of Master Julian Polika. The issue here was one that arises more frequently. The plaintiff sued his former solicitors in connection with an intellectual property matter involving patents in the United States. In this action, the plaintiff claimed US$1.5 million to compensate it for legal fees paid to the defendant Miller Thomson LLP (its former lawyers) and for costs associated with unsuccessful patent litigation in the United States.
Miller Thomson sought production of documents in the hands of various lawyers in Washington who had been hired by the plaintiff. The documents of which production was sought included ones which had been protected by “litigation privilege” (made for the dominant purpose of pending or anticipated litigation) or “solicitor-client” privilege (confidential communications between solicitor and client for the purpose of asking for or providing legal advice).
The plaintiff resisted producing the documents in the hands of its U.S. lawyers, claiming that those documents were protected by solicitor-client privilege. Master Polika rejected that submission and ordered the production of the documents. He noted that any claim to solicitor-client privilege had been waived by the plaintiff when it put into issue, in this lawsuit, its state of mind in the U.S. litigation. As the Master put it, “The plaintiff wishes to be reimbursed for the consequences of bringing the United States action but does not want to put up to scrutiny the advice it received in that action and the conduct of that action by the other lawyers and is only content to divulge its interaction with Mr. Speigel. It is not a tenable position nor is it fair. It smarts of cherry picking which is neither just nor fair to the defendant.”