Is it possible to sever the fact gathering work product prepared by Counsel?
Canada (Federal), Canada
The following excerpt is from Slansky v. Canada (Attorney General), 2013 FCA 199 (CanLII):
Second, severance is possible, practically speaking. The factual portions are not linked inextricably to the gratuitous recommendations and analyses contained in the report. Nor are the factual portions recounted by the client, let alone recounted for the purpose of legal advice. The Prothonotary so found (at paragraph 30): …it is possible to sever the ‘fact-gathering’ investigative work product prepared by ‘Counsel’…These facts are separate and distinct from the advice given on legal issues that is privileged. This finding, mainly one of fact, should be respected: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401.
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