This is the second of a two-part blog series. Part 1, released earlier this week, addressed file delivery to a client (or their new lawyer), which is governed by file ownership. This blog (Part 2) addresses the different, and broader, obligation that arises when a former client sues the former lawyer in negligence and seeks the file in discovery under the Rules of Civil Procedure (the “Rules“).
A Different Question Entirely
A materially different situation arises in discoveries: where a former client sues the former lawyer in negligence and seeks the lawyer’s file, inclusive of the notes, memoranda, and emails that, on a simple transfer, the lawyer might have been entitled to withhold. In this setting, the ownership analysis from Cordery largely falls away, and a broader obligation takes its place.
Zeitoun: The Distinction Drawn
The point is illustrated by Zeitoun v. Falconeri, 2016 ONSC 5360 (“Zeitoun“). There, former clients sued their former lawyers over the handling of a long-running personal-injury claim. On a motion, the plaintiffs sought all internal memos, notes, and emails from the defendant lawyers’ files. The defendant lawyers resisted, relying on the “all or nothing” ownership argument drawn from Aggio v. Rosenberg—that internal memos, emails, and notes are simply not the property of the client. Master Short rejected that framing and ordered production.
The Court drew a clear line between a simple transfer of the file to new counsel and an action brought against the lawyer. Because the case “concerns an action for negligence against the previous lawyer,” ownership of the documents “ought to be largely irrelevant” (at para. 58). What mattered instead was the litigant’s ordinary obligation to produce documents under the Rules: all non-privileged documents in the lawyer’s possession that are relevant to the issues in the action are producible. Thus, whoever “owns” them is irrelevant.
The Governing Rules
Thus, in this context, production is governed not by Cordery but by the Rules:
- Rule 30.02 — the scope of documentary discovery turns on relevance to the matters in issue, and a lawyer’s internal file recording how the retainer was handled will ordinarily be squarely relevant in a negligence claim about that handling.
- Rule 30.04(5) — the court may, at any time, order production of non-privileged documents in a party’s possession, control, or power. Master Short relied on this discretion to order production in advance of the ordinary discovery process, where there was a valid reason to do so.
- Rule 1.04 and proportionality — the Rules are to be construed liberally to secure the just, most expeditious, and least expensive determination on the merits. The Court in Zeitoun invoked the “culture shift” endorsed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, toward timely and proportionate procedure, in concluding that the documents should be produced now rather than after further procedural skirmishing.
A Word on Privilege
None of this means privilege is irrelevant. Privilege must be assessed with care and in context. Solicitor-client privilege as against the suing client is generally not the obstacle, because the client impliedly waives that privilege by commencing the lawsuit and seeking production through discovery. It is litigation privilege that must often be considered.
Producibility therefore generally turns on relevance and on any other applicable privilege (e.g., litigation privilege)—for example, the lawyer’s own privileged communications with independent counsel or with the Law Society about the matter. The analysis is document specific.
Takeaway
When a lawyer is sued by a former client, the internal file is generally producible in discovery regardless of who owns it, subject only to relevance and any applicable privilege. That could be a materially broader obligation than the one that governs file delivery outside an action, and it explains why the two questions—canvassed across this two-part blog series—should never be conflated.
The Cordery ownership categories of Part 1 answer “what must I hand over to my former client?”, whereas the Rules answer “what must I produce to the party now suing me?”
Thank you for reading and have a great day!
By Jordyn Sanford