Investigator's Reports - Privileged or Not?

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It seems so simple! Once you retain a lawyer, everything you say in his or her presence is protected from scrutiny by others. No one can force either the client or the lawyer to expose the nature of the confidential discussions. The reason for this fundamental premise of law is that every person is entitled to legal advice and in receiving that advice to be forthcoming with their legal advisor. In doing so, they must know that what they reveal is protected. In this way, they may reveal all the facts which allows for the legal advisor to be fully informed.

How does this protection apply to investigator’s reports commissioned by the lawyer to help inform him of the facts about which advice is being sought? My partner Peigi Ross has persuaded Master Abrams in a recent decision that if counsel follows certain steps, the investigator’s report for the lawyer is not discoverable and is protected from scrutiny. This is an important decision for investigators and lawyers.

In this case, the lawyer was retained by a Board of Directors to assist it with advice about how to investigate a complaint against the most senior executive, and how to address the issues flowing from the investigation including the possibility of defending an action for wrongful dismissal. Based on this retainer, the Board lawyer retained an investigation firm to carry out the investigation and report to him throughout so he could use their assessment of their factual findings to assist him in providing legal advice.

At all times the investigators conducted their activities on behalf of the Board through consultation with counsel. They reported to him, not the client directly. Their report and its appendices were marked privileged and confidential. The lawyer only released the Report to the Board in the context of his providing them with legal advice based on the Report. Once the Board provided instructions, counsel took the Report back so that no Board member retained a copy.

In these circumstances, Master Abrams has answered the demand for release of the Report by finding as a general principle that the Report and supporting documents created in its preparation will all be privileged. She acknowledges that fact finding can be an important role fulfilled by counsel so that they can provide legal advice. She declares that investigators acting under the instruction of counsel are equally involved in the collection and analysis of information to assist the lawyer in providing advice. Hence, the Report is protected.

The Master cautions that not all documents created or collected in the course of a privileged investigation process may be protected from exposure in discovery. That will be a document by document analysis based on the description of the circumstances of each document over which privilege is claimed. In the case at hand, she ordered the party claiming the privilege to identify the nature of the documents more fully so the other party could determine if there were any documents which fell outside the general protection for either legal advice privilege or litigation privilege.

Nevertheless, the key point is that an Investigator’s Report made for the dominant purpose of assisting in the provision of legal advice is privileged. The case is not yet reported. Rutledge v. Markhaven Inc, Ontario Superior Court, January 16, 2019.