Case Report – E-mail leak does not result in waiver of privilege

In this June 26th Ontario Superior Court decision, the Court allowed a motion to suppress e-mails containing privileged communications that were filed by a former spouse after she received them from her former husband’s girlfriend.

After rejecting an argument that the e-mail communications were subject to the criminal intent exception to solicitor-client privilege, the Court went into detail on the waiver argument. Although there was a sharp factual dispute about how the e-mails were leaked, the Court held that the respondent’s best case – that the applicant had his girlfriend type e-mails to his lawyer and left such e-mails around the home – would not be grounds for waiver in the circumstances.

The Court stressed that waiver is a question of intent, and held that the applicant had a reasonable expectation of confidence that was breached by his girlfriend (i.e. he was not reckless to ask a friend for administrative help nor was he reckless to leave documents around a private home). The Court also stressed that the test for waiver requires a balancing of interests and that a court must assess all factors, including the “threshold relevance” of the impugned evidence, before allowing it to be admitted despite a valid privilege claim. In the circumstances therefore, the Court’s finding that the leaked e-mails had little probative value weighed in favour of its decision that they ought to be suppressed.

Though the decision is fact-specific, the Court goes on to make a rather principled statement about electronic documents and how they are hard to control, suggesting that protecting solicitor-client privilege requires a more forgiving application of the waiver doctrine.

Hat tip to Jennifer Normandin of Goldhart & Associates, who wrote a great and more complete summary of this case in this week’s Lawyers Weekly.

Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ON. S.C.).