PRACTICE |
Privilege |
Caricline Ventures Ltd. v. ZZTY Holdings Ltd.
T-1608-97, T-1609-97
2001 FCT 340, O'Keefe J.
18/4/01
9 pp.
In trade-marks case, defendants adduced evidence about communications with law firm about "Farside" trade-mark--Plaintiff requested entire file relating to "Farside"--Defendants agreed there had been waiver of privilege, but file produced by counsel for defendants inadvertently included documents relating to litigation and other trade-mark files--Issues scope of defendants' waiver of privilege; whether defendants waived privilege over entire contents of combined litigation and trade-mark file in respect of "Farside" by combining documents relating to both matters on file; if not, what is proper procedure for proper and fair production of additional material--(1) Only privilege in respect of "Farside" trade-mark application waived--Solicitor-client privilege most important and should only be considered waived to extent will ensure that plaintiff treated fairly herein--Privilege not waived with respect to other trade-mark application files of defendants--(2) Mere keeping of litigation documents in trade-mark file did not cause defendants to lose solicitor-client privilege on litigation file--Important not where documents kept, but whether document relevant and falling within privileged category--(3) Up to trial judge to fashion process to allow for fair production--Fair process would consist of defendants filing supplementary affidavit of documents in matter required by rr. 223, 224--Federal Court Rules, 1998, SOR/98-106, rr. 223, 224.