Protecting Privilege in a Changing Legal Landscape

Privilege remains one of the legal profession's most important protections, but its application is being tested in new ways. While the core principles have changed little, emerging technologies, evolving litigation tactics and increasingly sophisticated investigations are prompting courts to examine where privilege begins, where it ends and when it may be lost. For in-house legal teams, understanding these developments is essential to preserving privilege while navigating modern legal risks.

Below are five areas of risk that warrant proactive steps to help prevent inadvertent disclosure.

1. Artificial Intelligence Risks. The growing use of generative AI raises important questions about whether user prompts, chatbot conversations and AI-generated content may be subject to production in litigation. Although Canadian courts have yet to address these issues directly, early decisions from other jurisdictions suggest that traditional privilege principles will continue to apply, making confidentiality settings and the choice of AI platform critical considerations. For more information on this topic, please see our Blakes Bulletins AI and Legal Privilege: Practical Considerations From Emerging Case Law and Prompts and Production: Your Chatbot May Not Be Your Friend in Litigation.
2. Document Discipline. Effective document management remains one of the simplest ways to protect privilege. Courts continue to look beyond labels such as "Privileged and Confidential" and instead focus on the purpose and substance of a communication. Similarly, copying legal counsel on an email or forwarding business communications for review will not automatically make those communications privileged.
3. Unintended Waiver. Privilege can be lost unintentionally through litigation strategy. Recent decisions demonstrate that selectively disclosing privileged communications or relying on legal advice to support a claim or defence may result in a broader waiver than anticipated. Careful consideration should therefore be given to how pleadings, evidence and disclosure decisions may affect privilege.
4. Investigation Planning. Internal investigations present unique privilege challenges because there is no standalone "investigation privilege." Whether privilege applies depends on established solicitor-client and litigation privilege principles, including the purpose for which documents are created and the role of non-lawyers involved in the investigation. Organizations should also be mindful that privilege rules may vary across jurisdictions. In Quebec, for example, professional secrecy extends beyond lawyers to certain other regulated professionals, although recent decisions confirm that the scope of protection varies by profession and the client's reasonable expectation of confidentiality.
5. Non-Lawyer Work. Privilege does not automatically apply to work performed by consultants, investigators or other non-lawyers. Courts may protect those communications where the third party is essential to the solicitor-client relationship or where the work is created for the dominant purpose of litigation. The role of the non-lawyer should therefore be clearly defined at the outset.

Have more than five minutes? Watch our recent webinar on this topic or contact any member of our Litigation & Dispute Resolution group to learn more.