The Federal Court refused to order production of file notes prepared by an investigator retained by the defendants in patent infringement litigation. During cross-examination on a motion for security for costs, the defendants’ investigator identified “file notes” he had. The defendants’ counsel confirmed they were for a report prepared in connection with the litigation which had not been disclosed. The plaintiff sought production of the notes. The parties agreed the notes were protected by litigation privilege. Litigation privilege is intended to create a “zone of privacy”
in relation to pending or apprehended litigation. However, the plaintiff argued the defendants had waived privilege over the notes. The Court disagreed holding there was no express waiver of privilege because there was no indication the investigator referred to or relied on the notes to answer questions during his cross-examination. The Court also held that no “unfairness or disadvantage will result as a consequence of maintaining litigation privilege over the file notes and report.” The Court therefore declined to follow a line of case law holding that a “waiver of privilege may also occur in the absence of an
intention to waive, where fairness and consistency so require.”
CRB Consulting Inc. v. Massage Addict Incorporated et al., 2023 FC 1215