What is the test for disclosure of privileged documents?
British Columbia, Canada
The following excerpt is from Munro v Winton, 2021 BCSC 1615 (CanLII):
The plaintiff relies on Chong v. Lee, 2014 BCSC 734, which addressed the same situation. As in this case, the defendant served surveillance videos of the plaintiff under Rule 12-5(10) and gave notice of intention to call two investigators who made the videos. The plaintiff then applied for disclosure of the investigators’ reports and accounts. The court accepted that, before being disclosed, the videos and related documents were litigation privileged. The court found that there had been a waiver of privilege regarding the videos by their intentional disclosure to the other side under Rule 12-5(10), and the waiver extended by implication to other materials dealing with the same subject matter as the videos.
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