Can Opposing Counsel Demand Disclosure of a Privileged Expert Report Prepared by In-House Counsel in Saskatchewan, Canada?

Question from Jacob, Can Opposing Counsel Demand Disclosure of a Privileged Expert Report Prepared by In-House Counsel in Saskatchewan, Canada?

Answer from AI:

In Saskatchewan, Canada, the rules governing the disclosure of privileged information, such as an expert report prepared by in-house counsel, are complex. The general principle is that communications between a lawyer and their client for the purpose of legal advice are protected by solicitor-client privilege. However, there are circumstances where this privilege can be waived or where opposing counsel can demand production or disclosure of the report.

Grounds for Disclosure

Opposing counsel may demand production or disclosure of the report on several grounds:

1. Waiver of Privilege: If the company has shared the report beyond the in-house counsel and the individuals who needed to see it for the purpose of obtaining legal advice, this could be seen as a waiver of privilege. The courts will look at factors such as the nature of the document, the circumstances in which it was produced, and the purpose for which it was used.
2. Innocence at Stake: In criminal cases, if the accused’s innocence is at stake, the court may order disclosure of privileged information.
3. Public Safety: If there is a serious threat to public safety, the court may order disclosure.

Waiver of Privilege

Whether privilege is waived if others in the company besides the in-house counsel had access to the report depends on the circumstances. Generally, privilege is not waived simply because others in the company have seen the report. However, if the report has been widely disseminated within the company or shared with third parties, this could be seen as a waiver of privilege.

Consulting a Legal Professional

Given the complexity of these issues, it is recommended that individuals consult with a legal professional for personalized advice. The Law Society of Saskatchewan provides a public legal resources section on their website, which includes information on finding a lawyer and other legal resources.

Relevant Laws and Regulations

The rules governing solicitor-client privilege in Saskatchewan are found in case law, including the Supreme Court of Canada’s decisions in R. v. McClure and Smith v. Jones. The rules governing disclosure in civil cases are found in The Queen’s Bench Rules, specifically Rule 5-12 on expert reports.