Litigation Privilege In Family Law

I was quite shocked when having a conversation with a pair of family law lawyers a few years ago. We were engaging in a very large domestic legal matter, and I mentioned the prospect of exercising Litigation Privilege (as it’s known in Canada) or Work Product (as it’s known in the U.S. and other countries around the world). I was surprised because not only were these lawyers not familiar with the terms, but they had never exercised a client’s right to this extended privacy.

As time went on, I learned that many family law firms are not aware of this practice because they have not employed outside (third party) investigators to assist in their cases. For this reason, I provide this quick and simplified introduction to this protection, and how it could be of use to you.

So…What Is It?

Litigation Privilege is a legal protection that exists for those engaged in, or very likely to engage in, litigation. It doesn’t apply to everybody or every legal situation, but as long as litigation is a likely or anticipated end result, it may apply to you. We understand that Client-Solicitor Privilege exists, as it allows you to speak in confidence with your lawyer(s). Much the same, Litigation Privilege allows an external third party (namely your investigator) to discuss matters relating to research and investigation with your lawyer directly; thereby allowing your counsel to assess the merits of the potential litigation and prepare your case without the concern of disclosing of those details to the other side. More specifically, Litigation Privilege is used to protect confidential documents and communications that were created with the end purpose of being used in or relating to a potential litigation.

It should be noted that a document or communication ceases to be confidential if it is put into the public domain, and therefore litigation privilege is generally lost if the document or communication is read out in open court, or is communicated between opposing parties. The legal team and client would be wise to avoid broad, general or extensive internal circulation of any document that is considered privileged.

Although this protection should be cut and dry, it rarely is, and sometimes the complexities involved are not worth the effort. On other occasions, it may be the difference between having a rock solid case without the other side knowing it was coming, or spending money and time trying to build an argument by probing the opposing party.

Tips For Maximizing The Protection Of Litigation Privilege

• Keep it confidential – once a document is public, it is too late to try to protect it;
• Know what you plan to do; The decision to keep something confidential is made at the commissioning stage of a document, not after the fact;
• While you can mark any document or communication as confidential and created for litigation, this will not in itself ensure privilege will apply;
• Exercise caution in discussing expert witnesses and reports or any document, correspondence or advice received in relation to litigation;
• Never provide documentation to the other side without the guidance of your lawyer;
• Once a document is protected by Litigation Privilege it will always be protected. Do not put a document into the public domain just because the dispute has settled down or appears to be over. It may need to be protected in future litigation and if you made it public once, you cannot retract that decision;
• When circulating documents internally, carefully consider who you are sending them to, why you are sending them and whether the recipient really needs to see them;
• Always avoid sending emails containing potentially privileged information en masse

At the end of the day, Litigation Privilege may or may not apply to you, and may or may not be beneficial to you. But knowledge is power, and I hope that knowing that the option may exist to you or your legal team empowers you to be successful in your matter.