Ingathered records and the scope of litigation privilege in Canada: Does litigation privilege apply to copies or collections of otherwise underprivileged documents?

• Author(s) / Creator(s)

  • Billingsley, Barbara

• Introduction: Each of the scenarios described above gives rise to the same, long-standing question regarding document production in civil litigation, namely: are copies of otherwise unprivileged original documents or records, gathered for the dominant purpose of litigation (i.e. \"ingathered documents\"), exempt from pre-trial production on the basis of litigation privilege? This issue is now new, but, as the scenarios above suggest, the question is of increasing importance in the modern information age where lawyer, litigants and third parties can readily obtain a wide range of information from social networking sites, public web-cam feeds and other internet sources. Further, although lawyers and litigants must regularly confront this problem, to date Canadian law has not clearly resolved the question. Legislated civil procedure rules do not specifically address the production of ingathered documents. In Blank v. Canada (Minister of Justice), the Supreme Court of Canada definitively stated that litigation privilege attaches to records which are \"created for the dominant purpose\" of litigation, but the Supreme Court has not yet determined whether \"creation\" includes the copying or collecting of otherwise unprivileged records. Instead, while recognizing the issue, the Supreme Court has elected to wait for \"a case where it is explicitly raised and fully argued\" in order to rule on the matter. Lower courts have directly confronted the issue but the leading decisions on point are conflicting.

• Date created

  2014-01-01

• Subjects / Keywords

  • Canadian Law
  • Judicial Administration

• Type of Item

  Article (Published)

• DOI

  https://doi.org/10.7939/R3QJ78C4Q

• License

  © 2014 Barbara Billingsley et al. This version of this article is open access and can be downloaded and shared. The original author(s) and source must be cited.