What is litigation privilege and what is its impact?
Northwest Territories, Canada
The following excerpt is from Bargen v CBC, 2007 NWTSC 104 (CanLII):
First, litigation privilege is driven by different policy considerations than solicitor-client privilege, and generates different legal consequences. Blank v. Canada (Minister of Justice), supra, at paras 33-34. More specifically, litigation privilege is not focused on the protection of relationships between parties. Rather, its purpose is related to the needs of the adversarial process. It is based on the need for a protected area to facilitate the investigation and preparation of a case for trial by the adversarial advocate. Its purpose is to create a “zone of privacy” in relation to pending or apprehended litigation. Blank v. Canada (Minister of Justice), supra, at paras 28 and 34.
Next, litigation privilege, unlike solicitor-client privilege, is neither absolute in scope nor permanent in duration. Blank v. Canada (Minister of Justice), supra, at para. 37.
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