Monday, 26 March 2012

Waiver of Privilege when Evidence Is Destroyed

Privilege, whether solicitor-client, litigation or settlement, is an essential part of our adversarial system.  It is a functional component and, necessarily, helps one party and hinders the other, while overall facilitating the administration of justice.  However, it is not without limits, and its use is still subject to the overriding principles of fairness and equity.  In a previous post, I reported on a recent BCSC decision, which explained that settlement privilege does not apply to egregious threats.

On the heels of that decision, Master Baker, in Brown v. Wilkinson, 2012 BCSC 398, considered various issues concerning solicitor-client and litigation privilege and when waiver of such privilege is required in the interests of justice.  Finding for the Plaintiffs who requested production of certain privileged documents, he found that:

(i) a lawyer is not a "safety deposit deposit box" and solicitor-client privilege does not attach "simply by his or her general or background presence";

(ii) litigation privilege only attaches when, objectively, litigation was contemplated and the predominant, rather than just substantial purpose of a communications was litigation.  An insurer's "fact gathering" serves a dual purpose of preparing for settlement and potential litigation and may not attract litigation privilege; and

(iii) where a party is requested to but fails to preserve evidence, whether or not the failure amounts to spoliation, privilege attaching to documents dealing with such evidence may be waived in the interest of justice.