Ontario Court Rules on Litigation Privilege and Internal Investigations

In a recent decision, the Ontario Superior Court of Justice has confirmed that notes taken by lawyers in the course of an investigation are privileged as long as litigation is reasonably anticipated. However, the decision in R. v. Dunn, released on May 7, 2012, also serves as a useful reminder that while the notes prepared by a lawyer may be protected from disclosure, a lawyer may be compelled to testify about what occurred at a meeting that he or she attended on behalf of a client, if third parties were also present.

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