Court Analyzes Lawyer-Client Privilege in Electronic Era

We are grateful to Master Robert Beaudoin for passing along an interesting decision by Madam Justice Ramona A. Wildman, dealing with lawyer-client privilege. The case is Eizenshtein v. Eizenshtein. It flew under our radar because of being a family law decision but, as Master Beaudoin pointed out, it is equally applicable in a civil context.

The main issue in the case was whether emails exchanged between the husband (Mr. Eizenshtein) and his lawyer lost their privileged quality when the husband’s former girlfriend got her hands on them and forwarded them to the wife (Ms. Eizenshtein). From there, the emails became exhibits to an affidavit of the wife. Counsel for the husband argued that the email exchange was privileged and therefore, inadmissible.

Justice Wildman heard the motion and ruled in favour of Mr. Eizenshtein, finding that the emails had not lost their privileged quality. Her reasons contain an interesting and useful discussion of how to fit the square peg of lawyer-client privilege into the round hole of 21st century electronic communication. We’re not entirely in agreement with Justice Wildman’s suggested approach to these sorts of cases however.

In arguing for the admissibility of the emails, counsel for the wife relied upon two exceptions to lawyer-client privilege. First, he argued that privilege is lost if the communication in question discloses that the client intends to commit a crime or is seeking advice about committing a crime. The other ground was that the communications ceased to be privileged once they were disclosed to a third party (in this case, the husband’s former girlfriend).

On the first argument, the “crime” that was alleged was knowingly filing a false affidavit. Justice Wildman, who had read the emails in question, found that they did not indicate any intention to commit a fraud or mislead the court. Accordingly, she rejected this argument for the admissibility of the emails.

The second ground, disclosure to a third party, was given more serious consideration. Her Honour referred extensively to the Supreme Court of Canada’s decision in Descoteaux v. Mierwinski and to Sopinka, Lederman and Bryant’s text, The Law of Evidence in Canada, from which authorities she extracted the principle that disclosure of confidential communications to a third party does not automatically make them admissible in court. Rather, she said, “[t]he court is required to conduct an inquiry to determine, in all the circumstances, whether the information is so important to the outcome of the case that it should be admitted despite the existence of the privilege.”

Justice Wildman was of the view that, in undertaking this “inquiry”, it would be relevant to know the extent to which the circumstances under which the privileged documents were disclosed. Here, even accepting that the wife was not guilty of any misconduct herself in the disclosure of the husband’s emails, there had been no intentional or even reckless disclosure to a third party by the husband that would warrant admitting the information.

Interestingly, on this point, the court drew some finer distinctions within the category of “advertent disclosure”. Her Honour found that even if it were true, that Mr. Eizenshtein had disclosed the emails to his former girlfriend, he had done so in the belief that they would “go no further”. Likewise, she held that asking a family member for help in printing or typing an electronic document does not result in a loss of privilege. Justice Wildman said that this was “the technological equivalent of an illiterate person asking for help to read a legal document”. Of greater importance than the distinction between advertent and inadvertent disclosure, said Her Honour, was Mr. Eizenshtein’s intention in allowing the girlfriend to see the messages.

In the last section of her judgment, Justice Wildman discussed privilege in the electronic era. She said that “To allow the admission of evidence, even if disclosed to others with whom a person has a close business, family or intimate relationship, would encourage troubling scenarios… The message would be ‘if you can get your hands on it, we’ll take a look at it’. That is not what our courts should be saying about solicitor-client communications. Instead, the message should be ‘Hands off – it’s private!'”

Her Honour said that the onus should be on the person seeking to override the privilege to establish that the document should be admitted. Beginning at paragraph 45 of her reasons, she propounded a “non-exhaustive list” of criteria that courts could consider in such cases. The discussion is too lengthy to summarize here and reference should be made to Her Honour’s reasons themselves, but the three basic factors that she proposed were these:

  1. threshold relevance – is the evidence relevant to an issue before the court?
  2. Exceptions to privilege – In this stage of the analysis, there should be a consideration of not only the traditional exceptions to privilege, such as the criminal intent exception considered in Descoteaux, but also a principled analysis of the circumstances of disclosure to reflect the “fairness approach” developed in more recent cases.
  3. Ultimate relevance – Does the probative value of the evidence outweigh the prejudicial effect of admitting it?

 In the result, Justice Wildman refused to admit the husband’s emails into evidence. She held that the prejudice of their admission far outweighed their probative value. She also found that the threshold relevance was low and that, in the circumstances, it would be unfair to receive the documents into evidence.

Is it appropriate, we wonder, to take into consideration at all what Justice Wildman called the “ultimate relevance” of the document in question? If the starting point is, that the document is privileged and should not be received into evidence, of what relevance is its probative value (unless the determination has been made that privilege is lost and the question has then become, whether the document is relevant to any issue in the proceeding)?

Surely the primary question should be whether the privilege has been lost or not by disclosure. We don’t see why this inquiry should be swayed one way or the other by comparing the probative value with the prejudice that would result from ordering its production. The more prejudicial disclosure would be, the more likely it is that an opposing party will seek to have the document admitted. But that, to us, seems to be an entirely irrelevant consideration.

It also seems problematic to consider, in looking at the advertent disclosure of privileged documents to a third party, what kind of third party was involved or the reason for the disclosure. If disclosure of documents to, say, family members does not result in loss of privilege, the result is effectively an extension of the umbrella of lawyer-client privilege beyond those in the classically protected relationship. Or if it is the purpose for which disclosure is made (printing or typing an electronic document, for example, to use one of Justice Wildman’s example), that too would effectively extend the scope of the privilege, but in very unpredictable ways.

If there are to be circumstances in which disclosure of privileged information to third parties does not result in loss of privilege, it seems to us that these should be much better-defined than they seem to be now. But the prejudicial effect of disclosure should not enter into the inquiry.

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