Court of Appeal Provides 'Modern Approach' to Privileged Documents

In Canadian Natural Resources Limited v. ShawCor Ltd., 2014 ABCA 289, the Court of Appeal outlined a new approach to claims of privilege over documents. The Court held that a party preparing an affidavit of records must, short of revealing information that is privileged, provide a sufficient description of each record for which privilege is claimed. In sum, this decision suggests that records over which privilege is asserted must now be individually dealt with by:

Being numbered in a convenient order; Providing a brief description of the document, without disclosing the privileged information; and Identifying the grounds of privilege relied upon. Facts Following a well blow out Canadian Natural Resources Ltd., ("CNRL") had to replace a 32 km pipeline between two of its facilities. CNRL sued ShawCor Ltd, ("ShawCor"), and others for damages relating to the alleged improper design and construction of the pipeline.

ShawCor argued CNRL failed to disclose all...