Inadvertent Disclosure And Improper Use Of Privileged Communications

• Published date: 05 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele, Gavin Tighe and James R.G. Cook

In our digital world, virtually everyone has made the mistake of hitting send on an email or text that they wish they could take back either because of the content or to whom they sent it.

During the cross-examination of Infowars host Alex Jones in the Sandy Hook defamation lawsuit, counsel for the plaintiffs put to him that "12 days ago your attorneys messed up and sent me an entire digital copy of your entire cell phone with every text message you've sent for the past two years, and when informed did not take any steps to identify it as privileged or protect it in any way." Counsel then put evidence retrieved from the phone to Mr. Jones to show that he lied under oath in a pre-trial discovery or deposition when he stated that he did not have any text messages about Sandy Hook. Mr. Jones had been ordered to turn over any text messages and emails about Sandy Hook.

While this drama played out in a Texas courtroom in August 2022 (of course live-streamed on Youtube), the circumstances raise issues that are relevant to parties and counsel in Ontario and elsewhere in Canada. To mix metaphors the question is: are inadvertently sent communications (by lawyers or otherwise) the proverbial 'horse out of the barn' or can that genie be stuffed back into the evidentiary bottle?

In Canada, solicitor-client privilege protects the confidential relationship between lawyers and their clients and arises where three conditions are satisfied: (1) the communication over which privilege is asserted must be a communication between lawyer and client; (2) which entails the seeking or giving of legal advice; and (3) which is intended to be confidential by the parties: Solosky v. The Queen, 1979 CanLII 9 (SCC).

The right to solicitor-client privilege is one of the law's most cherished instances of protecting rights of privacy and confidentiality. In the words of Ontario Superior Court of Justice P. Perell, "in Canada, solicitor and client privilege is regarded as having quasi-constitutional importance to the administration of justice. It is a substantive rule of law and a sacrosanct fundamental principle of justice": Glegg v. Glass, 2019 ONSC 6623 (CanLII), at para 8, aff'd 2020 ONCA 833 (CanLII).

The reality of lawyer-client privilege is that it is absolutely essential to the functioning of the justice system. Privilege allows the client to speak openly with their lawyer in order to obtain legal advice and not place their lawyer on a need to know basis determined by the client...