Legal privilege, or attorney-client privilege, is a principle well established in common law countries, especially in Canada and the U.S. However, transnational business, new work methods and recent financial scandals have altered its importance. This three-article series will clarify where we stand today with respect to the protection of legal privilege by focusing on the following issues: Legal privilege in the wake of corporate scandals; legal privilege applied to modern litigation, with an emphasis on e-discovery; and the influence and impact of Europe’s views on legal privilege.
The federal agencies’ positions and guidelines definitely compelled many companies to disclose privileged documents in the face of pending investigations. Many hoped to mitigate the consequences of disclosure by signing confidentiality agreements with the prosecutors in an effort to prevent third parties from trying to seek this privileged information through discovery. However, the fate of what is now called the “selective waiver” is highly uncertain. While some courts have agreed to consider the “selective waiver” as protecting the information from disclosure to third parties, most of them have rejected this interpretation.(In re Qwest Communications Int’l, Inc. Sec. Litig).
Considering that companies conduct business in a similar fashion in both Canada and the U.S., it would not be unreasonable to assume that Canadian courts may follow a similar path. Let us hope they do not, as there is no shortage of criticism when it comes to discussing how U.S. prosecutors have treated legal privilege in the past year.