To assess the effectiveness of their OHS programs, safety coordinators must conduct audits, inspections, risk assessments and incident investigations. In so doing, they generate internal documents that often contain sensitive information, such as a candid description of the flaws in the company’s OHS program. Wouldn’t it be a nightmare if such documents were to fall into the hands of government officials, who could then use them against the company in an OHS prosecution? Unfortunately, this situation happens all the time. The good news? You can prevent it from happening to your company by using a concept called “privilege” to shield internal safety records from disclosure. But ensuring that documents are privileged isn’t easy. And even after privilege has been created, it’s very fragile and can easily be “waived”—that is, given up—if you don’t handle the documents correctly.

One of the most common ways to inadvertently waive privilege is to show a privileged document to a third party. But in some situations, privileged documents can be shared with third parties, such as health and safety consultants, lawyers and other experts, without compromising the privilege.

This article will tell you what you need to know about the concept of privilege and explain how privileged health and safety documents can be shared with third parties without waiving the privilege. There’s also a Model Agreement that you can give to the company’s lawyer to ensure that granting access to the third party doesn’t cause the document to lose its privileged status and thus become subject to disclosure by government officials and others.

Privilege Basics
To understand how to protect privileged documents, you need to understand the basic principles of privilege and how documents get privileged status. So here’s a brief and, we hope, painless review of the relevant law.

In the Canadian legal system, parties to a legal proceeding (or a potential proceeding) are allowed to gather certain information about each other so they can build their respective cases. This process is called discovery. But discovery is subject to certain limits. Privilege is one such limit. If information is privileged, you don’t have to disclose it to the other party. The purpose of privilege is to protect the confidentiality of certain communications and relationships. For example, privilege enables patients and doctors to communicate freely with each other without having to worry that their conversations will be disclosed to third parties. There are two kinds of privilege safety coordinators need to be familiar with:

Contemplated litigation privilege. The first kind of privilege that’s relevant to you is the so-called “contemplated litigation privilege.” When a company faces a possible prosecution for an OHS violation, it needs to assess its risks and formulate a strategy. For example, the company will want to analyze its OHS program and determine why it failed to prevent the violation. The company will also want to gather detailed information to evaluate whether it has a viable due diligence defence.

The problem, of course, is that this same detailed information could be used by the government to prosecute the company. And fear of disclosure could have a chilling effect on companies and discourage them from conducting the internal assessments necessary to identify and repair problems, and maintain an effective system to prevent illnesses and injuries. Obviously, the government doesn’t want to discourage such assessments. So the contemplated litigation privilege lets the company make such an assessment without having to disclose the results to government inspectors or prosecutors. The basic rule: A company isn’t required to share information that has been gathered in contemplation of litigation with government officials.

For this privilege to apply to an internal health and safety document:

• The prospect of litigation must be the primary reason for creating the document; and
• A lawsuit must actually be underway or “reasonably contemplated” when the document is created.

Solicitor-client privilege. The second kind of privilege you need to know about is the “solicitor-client privilege.” Clients need to be able to speak freely to their lawyers when seeking legal advice. The solicitor-client privilege was created to protect the confidentiality of these communications. Unlike the contemplated litigation privilege, solicitor-client privilege applies only if a lawyer is involved, which is likely if the company expects to be prosecuted for an OHS or other health and safety violation. So the two privileges often overlap. But unlike the contemplated litigation privilege, the solicitor-client privilege applies even if a lawsuit isn’t underway or reasonably contemplated.

Note that you can’t establish solicitor-client privilege simply by giving a lawyer a copy of the document you want to protect. For this privilege to apply:

• The document must be part of a communication between the company and its lawyer—even if the communication isn’t related to a specific lawsuit;
• The communication must be made in confidence; and
• The purpose of the communication must be to seek legal advice.

How to Safely Disclose Privileged Documents
As explained above, privilege is designed to protect the confidentiality of certain communications. It makes sense that if you compromise the confidentiality of a document by sharing it with anyone who wants to see it, you waive the privilege. So if you want documents to remain privileged, you need to keep them away from third parties.

But not every disclosure of a privileged document to a third party waives the privilege. Sometimes a disclosure to a third party is consistent with the purpose of the underlying privilege. For example, BC lawyer Paul R. Cassidy notes that to provide regulatory advice to a client, a lawyer may want an outside expert to review an audit of the company’s OHS policies and procedures to determine if they’re in compliance with health and safety laws. So is there a way the lawyer can share that audit without waiving the privilege?

The short answer is yes. A lawyer can show a privileged document to, say, an auditor or safety consultant if he needs that individual’s assessment of the document to give legal advice to the company, says Cassidy. The communication between lawyer and consultant—including the sharing of the privileged document—thus becomes an extension of the solicitor-client privilege. But access to the privileged document must be granted to the third party by a lawyer, he warns. So a safety coordinator can’t directly send the company’s privileged audit report to an outside expert without waiving the privilege, says Cassidy.

But the privilege can still be lost even if the lawyer discloses the privileged document to the third party. To prevent such a waiver from occurring, there are certain precautions you should ensure that the company’s lawyers take when they give third parties access to the company’s privileged records:

Limit scope of disclosure. It may be possible to share the whole privileged document with a third party without waiving the privilege. But, according to Cassidy, the “more prudent” approach would be to give the third party only the parts of the document he needs. For example, if you want an outside expert to review the company’s compliance with machine guarding requirements, the lawyer shouldn’t give the expert the parts of an internal audit report that relate to compliance with WHMIS requirements. But the lawyer must make sure that the expert gets enough information to make an informed, accurate assessment, notes Cassidy. The best approach is simply to ask experts what information they’ll need for the assessment and then give them only that information, Cassidy advises.

Insider Says: The lawyer may also be able to get an outside expert’s opinion without disclosing any privileged information. For example, Cassidy says that he’ll often ask an expert to assess a hypothetical that’s based on a company’s actual situation but doesn’t disclose details or privileged information. The drawback to this approach: The expert’s opinion may be inaccurate or incomplete because it’s based on limited information. Also, her opinion may be “highly qualified”—that is, limited in meaning or scope—and thus not very useful, says Cassidy.

Require written agreement. Make sure the company’s lawyer requires any third party who’ll be shown privileged documents to sign a written agreement. Like our Model Agreement below, this agreement should, among other things, do the following:

• State why the third party is being retained and specifically note that the third party’s opinion will be used by the lawyer to provide legal advice to the company;
• Note that privileged documents are being provided to the third party;
• Require the third party to return these documents and any copies of them to the lawyer when the retainer ends;
• Explain solicitor-client privilege and how it applies to the privileged documents and the third party’s dealings with the lawyer; and
• Bar the third party from disclosing the dealings with the lawyer and the privileged documents to others or consulting with others on this matter without written notification to and permission from the lawyer.

Repeat agreement’s requirements. Any time the company’s lawyer communicates with the third party about the privileged document or information—whether in an email, fax, letter or other written communication—he should reiterate the agreement’s requirements, suggests Cassidy. Doing so serves to continually remind the third party of her obligations, which is especially useful if the agreement was signed, say, a year ago.

Conclusion
As a safety coordinator, one of your duties is to keep prosecutors and government investigators from getting access to internal safety documents that may reflect badly on the company or its OHS program. So taking steps to protect key documents with privilege is critical. But it’s only the first step. You also need to be vigilant in ensuring that privilege isn’t inadvertently waived by giving these documents to a third party. That’s not to say that an outside expert’s advice won’t be useful in helping the company, say, prepare its defence in an OHS prosecution. But you must make sure that the company’s lawyer takes the appropriate precautions before sharing privileged information with a third party. Without such precautions, privilege may be lost and all your efforts to protect the information with privilege will have been for naught.

INSIDER SOURCE
Paul R. Cassidy: Partner, Blake, Cassels & Graydon, LLP, 595 Burrard St., Ste. 2600, Three Bentall Centre, Vancouver, BC V7X 1L3; (604) 631-3300; Paul.Cassidy@blakes.com.