Legal Word of the Day: “Litigation Privilege”

Photo: Jaybear

Photo: Jaybear

“Litigation Privilege” — A rule of evidence, litigation privilege protects certain documents from disclosure to an opposing party. Litigation privilege includes not just lawyer-client communications but third-party communications as well as preparation for litigation.

Whether a communication is protected by litigation privilege is a question of fact. It is determined in the specific context in which the communication was made.

Hallmarks of litigation privilege include the zone of privacy and the dominant purpose at the time a document was created. The purpose of litigation privilege is to ensure efficacy in the legal process. The party claiming the privilege must establish that the document or record was made for the dominant purpose of the anticipated legal case.

In Kennedy v. McKenzie, [2005] O.J. No 2060 (S.C.), Justice T. Ducharme set out the test for litigation privilege. His Honour held that a party asserting the privilege must establish that the documents were created:

    • For the dominant purpose of existing, contemplated or anticipated litigation; and
    • In answer to inquiries made by an agent for the party’s solicitor; or
    • At the request or suggestion of the party’s solicitor; or
    • For the purpose of giving them to counsel in order to obtain advice; or
    • To enable counsel to prosecute or defend an action or prepare a brief
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