July 21, 2014
By Arshy Mann
Canadian Lawyer Magazine
When undertaking an investigation in preparation for litigation, there’s always a danger it could fall into the other party’s hands through discovery. Litigation privilege doesn’t automatically apply to all investigative reports commissioned by a party.
Instead, in order to benefit from litigation privilege, a party must undertake an investigation with the dominant purpose of preparing for litigation.
According to Malcolm Aboud, a litigation associate with Osler Hoskin & Harcourt LLP, privilege claims for investigative reports often fail because the courts will find there was an alternative purpose to the probe.
Aboud says there are several ways lawyers can ensure investigations remain privileged. The first is to keep a paper trail. “The main theme you find as you look through the case law is the importance of keeping an evidentiary record of the investigation and the basis of the privilege claim.”
“One of the other interesting ones people run into is the decision whether to go internal or with a third party and whether to have the investigation undertaken by a lawyer or a non-lawyer employee,” says Aboud.
Aboud says that when in doubt, a good option is to use a red stamp. “If you’re planning on claiming privilege, stamp it.”
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