Written by Scott Bower, Russell Kruger, David Gruber and Brendan Sigalet
A litigation document management database does not have to be disclosed to the other side in a lawsuit, even where that leads to substantial expense and time consequences for a counterparty, the Federal Court of Appeal recently held in Canada v Tk'emlups te Secwepemc First Nation, 2020 FCA 179 [Tk'emlups]. The database is protected by litigation privilege.
Documents that are privileged do not have to be disclosed to the other side in a lawsuit or a freedom of information response. Several different types of privilege can apply to protect records, the most common of which are litigation privilege and solicitor-client privilege (legal advice privilege). Litigation privilege covers records created for the dominant purpose of existing or contemplated litigation, while solicitor-client privilege attaches to communications between lawyers and clients made in the course of obtaining legal advice. We have previously blogged on various aspects of privilege before (see our previous blogs written in February 2020, July 2019, July 2017, June 2017 and October 2016).
Tk'emlups involved an underlying class action brought by former students of residential schools against the Canadian government for their operation of some 140 residential schools between 1920 and 1997. The action involved production of over 50,000 documents in discovery, with the Crown reviewing an additional 80,000 documents for privilege and relevance. Many of the documents were not searchable via software using optical character recognition due to their poor quality. The documents had been reviewed by the Crown and entered into a database system, which provided searching by certain field codes, such as document type, author, recipient, and date. The plaintiffs sought access to these field codes and other database information in order to be able to better search and categorize the documents. The Crown refused the plaintiff's request, and the plaintiffs sought an order from the Federal Court forcing disclosure.
Initially, the Federal Court ordered production of the database, dismissing the argument that the disclosure of field names or the rules to be applied in coding the fields would fall within the Crown's litigation privilege.
On appeal, the Federal Court of Appeal overturned the lower court's decision. It noted that "a database assembled and stored on a computer is a document" within the meaning of the relevant Federal Court Rule, and therefore is prima facie producible. However, the question was whether the document management database was protected by litigation privilege. Referring to recent Supreme Court of Canada authority in Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52, the Court noted that litigation privilege is a "class privilege, which 'entails a presumption of non-disclosure once the conditions for its application are met'", which conditions are "that the document is created for the dominant purpose of litigation and that the litigation is pending or reasonably apprehended". Further, "[t]he privilege applies unless the document comes within an exception", namely "public safety, innocence of the accused and criminal communications", as well as "'evidence of the claimant party's abuse of process or similar blameworthy conduct'". Additionally, litigation privilege ends when the litigation (or closely related litigation) ends.
The Court held that the Crown's document management system was protected by litigation privilege, as it was recognized that the database was the work product of counsel preparing for litigation. None of the exceptions to the privilege applied.
The Court then considered whether it could nevertheless sever parts of the database and order its partial disclosure. In some instances, such as where disclosure is governed by the Federal Access to Information Act or its provincial equivalents, the Court noted it might be possible to order partial disclosure in a suitable case because legislation allows that. But not in this case. This was a court case. The lower court relied on "principles of economy, fairness and proportionality", as well as a Federal Court Rule to order partial disclosure, but litigation privilege is substantive law not subject to modification by rules of procedure. Procedural rules could not subtract from the protection offered by the substantive law of litigation privilege, and in the result, no partial reduction could be made. If a record is protected by litigation privilege, a court does not have the power to order portions of it disclosed on the basis they are innocuous; being innocuous is not an exception to litigation privilege, the Court found.
In today's record-rich world, it is not uncommon for litigation to involve the discovery of many thousands, and even hundreds of thousands, of records. When litigation occurs, it is common for litigation lawyers or their clients to create databases where that information is organized and searchable. Opposite parties in a lawsuit often want access to that database to save the expense of creating it themselves, or because they lack the resources to create one. Tk'emlups rules that these databases do not have to be shared. The databases, forming the work product of counsel, will generally be protected from discovery by litigation privilege.