Case Report – Privilege in e-mails waived based on uncontested waiver claim

9 Sep

On September 3rd, the Ontario Superior Court of Justice dismissed a motion to disqualify counsel who received allegedly privileged e-mails and used them to amend its pleadings. It held that the privilege holder had waived privilege either knowingly or through the reckless conduct of its counsel.

The privilege dispute arose in the context of a wrongful dismissal claim and a counter-claim brought against a departing plaintiff. The plaintiff had communicated with his legal counsel by e-mail on his former employer’s system. The employer’s American counsel retrieved the e-mails and turned them over to its Canadian counsel, who produced twelve suspect e-mails to the plaintiff in September 2007 along with 135 other documents. The next day, the employer’s counsel wrote a one page letter to the plaintiff’s counsel to deal with a number of production issues and expressly took the position that privilege in the e-mails had been waived.

The plaintiff objected to the production in May 2009. This was after its counsel had responded to all points in the one page letter except the privilege issue and had sought a further and better affidavit of documents. It was also after the defendant retained new counsel who assumed the plaintiff had accepted its privilege waiver position and sought to amend its pleadings to refer to the solicitor-client communications in November 2007.

On these facts, Master Glustein held that the plaintiff had waived privilege. He also held that he would not have otherwise disqualified the defendant’s newly-retained counsel, who he said was blameless in proceeding with its understanding that privilege had been waived. Master Glustein did not consider whether the plaintiff waived privilege in her communications by using her employer’s e-mail system, but did comment:

I also find no “blame” in CPL going through Eisses and Fava’s emails at the outset. Even if the Emails are privileged, CPL’s counsel (Miller and Blakes) believed that the Emails were not privileged because they were the employer’s documents, and that as such, Eisses waived privilege. In any event, CPL and Blakes did the right thing by immediately and explicitly advising Colson, at the outset of the production process, that CPL had produced solicitor-client communications on which CPL claimed Eisses waived privilege.

This obiter statement is of some interest given the frequency with which employers find themselves in custody of their former employees’ solicitor-client communications. The case is otherwise driven by its facts.

Eisses v. CPL Systems Canada Inc., 2009 CanLII 45440 (ON S.C.).

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