Who’s in the Know? It’s a Matter of Privilege

Written by on October 20, 2017. Posted in Environmental litigation and enforcement

Matters involving environmental litigation often take years to resolve. Some of this time may be used by environmental experts who strive to understand relevant environmental impacts before they write their opinion report. Sometimes they need more site-specific data, which may involve collecting and analyzing samples of soil, water, air, plants, animals or other materials. Getting this work done takes communication and planning, which involves numerous emails, telephone discussions and meetings, not to mention the actual field, laboratory and office work that generates the new data.

How is the information in of all this activity protected?

Through litigation privilege – which is different than client-solicitor privilege (a topic for another day).

From a practical perspective, when you’re an expert working in the middle of this activity, it can feel very restrictive to route communications through the legal team rather than directly to the client. But it’s worth it because litigation privilege allows those involved at the time to develop the case and formulate the best possible legal advice for the client without others knowing what line(s) of enquiry is being followed or the results obtained. More importantly, the legal team is free to decide (for any number of reasons) whether or not to release an expert’s opinion to the opposing party, and this is perfectly acceptable, provided the expert’s findings are protected by litigation privilege.

A few rules must be followed before litigation privilege applies:

  1. Communications must occur between a client’s legal representative and a third party (as mentioned above);
  2. The litigation (also called a legal action, lawsuit or prosecution) must be in progress or at least anticipated when communications begin; and
  3. The main purpose of the communications must be to obtain information for the litigation.

As a final note, litigation privilege has a sunset clause. This means that when the litigation is done, litigation privilege is done too; protection of the client’s interests related to the litigation is no longer necessary.