Consequences For Failing to Disclose Covert Surveillance

In a decision that could have repercussions for employers, the Ontario Court of Appeal has overturned a trial decision where the defendant 'ambushed' the plaintiff with surveillance evidence that it had failed to disclose in its Affidavit of Documents.
 
In Iannarelli v. Corbett, a motor vehicle accident case, the plaintiff sued after his pick-up truck was struck from behind by a cement-mixer driven by the defendant.  At trial, the parties presented their evidence regarding the weather and road conditions on the evening of the accident, and the defendant also introduced footage of video surveillance that had been shot without the plaintiff's knowledge over a period of two and one-half years following the accident.  The video was shown during the cross-examination of the plaintiff, in an effort to impeach his credibility, as it tended to refute his evidence regarding the extent of his injuries.  The surveillance evidence was not mentioned in the defendant's Affidavit of Documents (which should contain a reference to any and all arguably relevant evidence), but the trial judge admitted it despite the failure to disclose.  Ultimately, the jury found that the defendant was not liable for the plaintiff's injuries.  The plaintiff appealed.

The Ontario Court of Appeal reviewed the judge's charge to the jury and determined that his instructions on the onus to be applied were in error.  Accordingly, the trial finding was overturned and the defendants were found liable.  With respect to the video evidence, the Court reviewed the Rules of Civil Procedure governing the disclosure and production of arguably relevant materials, which is supposed "to prevent surprise and trial by ambush".  Despite the plaintiff's failure to request production of an Affidavit of Documents by the defendants, the defendant had a positive obligation to disclose and produce any document or thing that it intended to rely on at trial.  Moreover, even if the surveillance evidence was arguably privileged (as being created at a time when litigation was ongoing or contemplated), the defendants also would have had to disclose its existence and make a claim for privilege before the evidence could be presented in an effort to impeach the plaintiff's credibility.  The Court noted that the disclosure of such evidence can also assist parties in assessing their relative legal positions and may encourage settlement.  Even where an Affidavit of Documents has been served, and the surveillance is conducted afterward, the Court of Appeal found that the Rules require the party to produce a Supplementary Affidavit, which discloses the existence of the surveillance evidence.

The Court concluded that the trial judge erred in a number of ways, stating (at paras. 69 and 70):

The trial judge erred at the trial management conference. He ought to have ordered the respondents to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking. He should have offered the appellants an adjournment of the trial, and dealt with the issue of costs thrown away, since the appellants were not without fault. This would have permitted the appellants to access at least some of the advantages of disclosure. Even a relatively short adjournment to permit counsel to plan Mr. Iannarella’s examination-in-chief in light of the surveillance particulars would have been appropriate, in the event that the appellants did not want a lengthy adjournment. None of this was offered.

Instead, the trial judge enabled what amounted to a trial by ambush, which is completely inappropriate under the Rules (see Ceci, at para. 10). In the circumstances, the respondents cannot be absolved of the disclosure obligations set out above. I do not excuse the lapse in good trial practice by appellants’ trial counsel (not Mr. Zuber), by failing to pursue the appellants’ entitlements at an earlier stage. However, the weight of the disclosure obligations falls on the respondents, and rule 48.04 does not provide them with an escape route.

The Court of Appeal concluded that the trial judge should not have permitted the defendants to introduce the surveillance evidence.  Although the Rules permit the admission of evidence in these circumstances, the prejudice suffered by the plaintiff in the instant case was significant and could not be remedied by an adjournment or the award of costs, and the judge had also failed to conduct a voir dire on whether the evidence should be played for the jury.

In the result, the Court of Appeal threw out the jury's provisional damages assessment, and ordered a new trial on the issue of damages.

While the decision arises in the context of a personal injury case, it is instructive for counsel and employers in wrongful dismissal and other employment-related cases.  The Court of Appeal made clear that failure to comply with the Rules which results in prejudice and unfairness to the other party will have repercussions.  In this case, despite the fact that the defendants had good evidence suggesting that the plaintiff was overstating his injuries, the unfair way in which that evidence was introduced resulted in liability which may end up being significantly more than it would have otherwise been.  Employers and their lawyers will need to ensure that they comply with their disclosure obligations, even in relation to video that is shot well after the fact, and that they are careful in how they go about impeaching the credibility of an employee who is claiming damages for wrongful dismissal.

Need advice on a wrongful dismissal claim or demand?  Contact Lance Ceaser for expert advice.

Summary Judgment - The Way of the Future for (Some) Wrongful Dismissal Cases

When the Supreme Court of Canada issued its decision in Hryniak v. Mauldin last year, it was not clear whether the Court's guidance on the use of summary judgment motions (under Rule 20 of the Rules of Civil Procedure) would be applicable to wrongful dismissal actions.  The Supreme Court made clear that unnecessarily protracted proceedings were not necessary in all cases, and in some cases the delays and expense of a prolonged trial could result in a denial of justice.  So what about your average allegation of wrongful dismissal?

In its recent decision in Arnone v. Theratronics Ltd., the Ontario Court of Appeal has suggested that some wrongful dismissal cases may be ideal candidates for summary judgment, in keeping with the Supreme Court's decision, particularly those where the only issue is the quantum of reasonable notice that the employee ought to have received.  In Arnone, the employer had not asserted cause for termination or any other form of justification, so the only outstanding question to be decided was the period of reasonable notice.  The plaintiff brought a motion for summary judgment under Rule 20, claiming that the matter could be disposed of in a summary fashion because there was no 'genuine issue' requiring a trial.  The motion judge agreed, and granted summary judgment to the plaintiff.

On appeal, the employer argued that the motion judge had erred as there was disagreement between the parties as to whether the plaintiff was a supervisor or a manager, a factor going to the analysis of appropriate notice under Bardal v. The Globe & Mail Ltd.  The Court of Appeal rejected this argument, finding that the judge had sufficient material before him, including documentary evidence submitted by the employer, that would allow him to make a determination without conducting a trial.  Moreover, the employee had conceded, for purposes of the motion, that he may have been supervisory rather than managerial.  The Court observed that this objection did not necessitate a full trial, particularly as the nature of the employment was only one Bardal factor to be considered in determining reasonable notice.  The Court then stated:

Finally, while the appropriateness of bringing a summary judgment motion must be assessed in the particular circumstances of each case, a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.

The Court of Appeal concluded that the motion judge had not erred, as there was no genuine issue for trial (although other aspects of the judge's decision were altered on the appeal).

Provided parties to a wrongful dismissal case marshal the necessary documentary and affidavit evidence, it is likely that the courts will be prepared to entertain summary judgment motions in most 'notice period' cases. Hearing a motion is much more timely and cost-effective, and preserves judicial resources that would otherwise be expended hearing a trial.  If there are factual issues that require a more thorough analysis, employers will have to persuade a motion judge that documentary evidence and affidavits are insufficient to resolve the dispute.  It will therefore be imperative that employers ensure that they prepare for a summary judgment motion as if it may be determinative.  In many cases, it could be. 

Do you have questions about wrongful dismissals?  Need guidance to make sure that the notice provided is "reasonable"?  Contact Lance Ceaser for expert advice.

The High Cost of Being Unreasonable

All parties in litigation should be able to expect zealous representation from their lawyers.  But when does zealous become overzealous?  When do strategic decisions end up hurting the outcome?  The costs decision in Tossonian v. Cynphany Diamonds Inc. demonstrates how playing hard ball can be expensive.

As described in my earlier post on this case, the plaintiff had claimed that he had a 5-year contract with the employer, and that he should be entitled to damages based on the outstanding term of that contract when he was terminated after only 8 months' employment.  The trial judge found that the parties were not in agreement on a fixed-term contract; although the employer had signed two separate documents citing the 5-year term, these were provided solely for the purpose of assisting the plaintiff in getting a mortgage.  In the result, the plaintiff was awarded damages in lieu of 2 months' reasonable notice of termination.  Although his initial claim had been for over $400,000, which was whittled down to $175,000 at the start of trial, he ultimately recovered damages falling within the jurisdiction of the small claims court.  The judge sought submissions on the question of the parties' legal costs.

In this follow-up decision, the judge's displeasure with the fact that the defendant "played hard ball throughout the litigation" came through loud and clear.  First, the judge found that there was good reason for the plaintiff to allege the existence of a 5-year contract, based on the documents that the employer had signed.  Second, the defendant's own trial tactics had unnecessarily incurred costs and lengthened the trial.  The defendant brought a motion for security for costs and another for the issuance of an interprovincial summons (to the plaintiff's wife), both of which failed.  The defendant also argued a number of "largely unmeritorious evidentiary and procedural objections". All of these measures served to extend a 4 - 5 day trial to 7 days.  Finally, the employer failed to make a reasonable effort to resolve the matter.  As the judge observed, a "commercially astute party in the position of the defendant" would have offered more than the $3,000 (inclusive of interest and costs) that the employer put on the table.

The result?  The employer was ordered to pay the plaintiff's costs on a "partial indemnity" basis to the tune of over $90,000, despite the fact that his damages award was less than $15,000.  The employer was also still responsible for its own legal fees, which exceeded $140,000 for the trial alone.

The message is clear.  Judicial resources are limited.  Parties who waste court time, whether  by failing to engage in good faith efforts to settle cases or by prolonging trial through litigation "tactics", can expect to be sanctioned.  As this decision illustrates, being legally right is often not as important as being reasonable.

Do you need sound legal advice on a labour or employment law issue?  Need representation that is diligent without being unreasonable?  Contact Lance Ceaser for expert guidance.

Court reminds: "a message does not become privileged merely by sending a copy of it to a lawyer"

A recent decision of the Superior Court of Justice should serve as a good reminder to HR professionals that one must be careful in how information is shared if privilege will be claimed.

In Jacobson v. Atlas Copco Canada Inc., the plaintiff was a former employee of the defendant.  Following a workplace altercation involving the plaintiff and a co-worker, human resources investigated.  However, the plaintiff took the position that the local HR representative was biased.  Accordingly, the HR representative sought the opinion of another HR employee from a different location to ensure impartiality.  Copies of the investigation notes were exchanged among the HR representatives, with a copy to an external employment lawyer.  However, it was not clear that all of the employees on the email chain were aware of the identity of the lawyer, nor did anyone expressly seek the advice of the lawyer with respect to the outcome of the investigation.  In one particular email message, one of the HR reps offered his views on the application of the employer's progressive discipline policy and a proposed course of action vis-à-vis the plaintiff's employment.  A couple of hours later the lawyer provided his legal advice on the situation, although his opinion had not been solicited.  The employee was ultimately terminated, and sued for wrongful dismissal. 

In the course of the action, the plaintiff brought a motion seeking production of the email from the second HR representative of the company (but not the responding email from the lawyer, which clearly contained legal advice).  The employer resisted the motion on the basis that the email communication was protected by solicitor-client privilege and should not be produced.  In support of its position, the employer provided an affidavit from the company's General Manager, who advised that the company had retained the external lawyer to provide advice on the investigation, and his belief that the HR representative had been seeking advice when he copied his email to the lawyer.  However, the company did not provide an affidavit from the HR representative himself.

Justice Ellies looked at the surrounding circumstances to determine whether it was clear that the HR representative had intended to seek the lawyer's advice when he sent his email.  Unfortunately, because the company had not provided the "best evidence" (i.e., a statement from the individual who actually sent the email), the Judge concluded that the hearsay evidence of the General Manager did not establish that this was the intention of the communication in question. As the party claiming privilege, the onus of proving the communication was privileged rested with the company.  The evidence it put forward failed to prove that point on a balance of probabilities.  At paragraph 25, the Judge very succinctly summarized his conclusion:

Atlas Copco relies on [the General Manager]`s evidence that [the lawyer] was retained to provide legal advice prior to the [HR representative's] message and provided an opinion via e-mail a few hours after the message was sent. There is no doubt that [the lawyer]’s role was to provide legal advice with respect to this particular situation and that he did provide that advice after receiving [the HR representative's] message. However, that is not enough, in my view, to establish that [the HR representative] sent the message for the purpose of obtaining that legal advice in light of the other circumstantial evidence surrounding the communication. In the same way that sending a message to both a fellow employee and a lawyer does not prevent a communication from being privileged, a message does not become privileged merely by sending a copy of it to a lawyer.

While the decision turned largely on the  importance of producing the "best evidence" in all circumstances, it also lays bare a common assumption or misunderstanding about legal privilege.  In order to claim solicitor-client privilege, the client (in this context, the employer) must establish that the communication in question was sent to a lawyer with the intention of getting the lawyer's legal advice.  Copying a lawyer without soliciting an opinion may not suffice to protect the message from disclosure later, particularly if there is no discussion amongst the parties about the role of counsel on the email chain. Likewise, if the advice in question is not "legal" per se, privilege will also not apply.  Legal privilege can be a very valuable tool, particularly in the context of an investigation into wrongdoing.  However, if the role of the lawyer is not observed, privilege may be elusive.

Do you have questions about how and when solicitor-client privilege can be claimed?  Need assistance in conducting investigations?  Contact Lance Ceaser for expert guidance.




 

Court of Appeal Determines PHIPA Does Not Preclude Action for Privacy Breach

The Personal Health Information Protection Act ("PHIPA") creates a myriad of obligations for "personal health information custodians", as defined by the Act.  In a decision, that will be of particular interest to employers in the healthcare sector, the Ontario Court of Appeal has ruled that the legislative scheme does not close the door on a potential action for breach of privacy involving the personal health information ("PHI") of patients or clients.

After approximately 280 patient records were improperly accessed by an employee of the Peterborough Regional Health Centre (the "Hospital"), and the patients advised of the privacy breach, three (3) representative plaintiffs commenced a class action lawsuit (Hopkins v. Kay) against the Hospital, claiming "intrusion upon seclusion" (the privacy tort first recognized by the Ontario courts in Jones v. Tsige ("Jones")).  According to the Statement of Claim, a Registered Practical Nurse (who was later terminated as a result of her actions) and other Hospital employees accessed patient records without authorization.  The Claim alleged that the Hospital had not taken proper measures to implement policies and monitor staff to prevent unauthorized access to PHI.  Although the Claim had originally relied on provisions of PHIPA as a basis for relief, it was later amended to rely solely on the common law tort of intrusion upon seclusion. The Hospital brought a motion to dismiss the action, claiming that the plaintiffs' rights were entirely governed by PHIPA, which created an exhaustive code in relation to PHI, and that there was no access to a common law remedy for the privacy breach.  The motion was dismissed and the Hospital appealed.

On appeal, the Hospital argued that PHIPA created a comprehensive scheme, including complaint and enforcement mechanisms, that was intended to be the sole means to remedy violations of privacy related to PHI.  The Hospital argued that the Act set up adequate methods of redress, and it was clearly the intention of the Legislature that PHIPA was to occupy this field of the law, to the exclusion of the common law of tort.  The Court reviewed the history of the statute, and provided an overview of its mechanisms.  The Court observed that the Commissioner (who oversees the Act) has broad investigative and procedural powers, but that there was no "adversarial" dispute resolution contemplated and that orders of the Commissioner only became enforceable upon being filed with the Superior Court.  Moreover, upon a finding of a violation by the Commissioner, a complainant was expressly entitled to pursue a claim for damages in the courts, including a claim for mental anguish (s. 65 of the Act).  The Act also provides immunity for "good faith" acts or omissions that violate the legislation, but provides for fines for willful violations.

The Court found that there was nothing express or implied in PHIPA that would suggest the Legislature intended PHIPA to exclusively occupy the field of PHI protection.  While PHIPA provides an expansive and detailed regime for the collection, use and disclosure of personal information, it does not provide a dispute resolution mechanism that allows complainants to present and challenge evidence, instead focusing on the Commissioner's investigative authority.  The legislation expressly contemplates the possibility that a complaint might be more properly addressed through some other procedure, and permits individuals to pursue claims for damages in the courts.  While there was some overlap between proving a violation of the Act and making out the Jones tort, the two proceedings are sufficiently different that there was no reason to conclude that allowing an action to proceed would undermine the enforcement provisions of the Act.  Finally, the Court found that the Commissioner has broad discretion on whether to investigate a particular complaint, but that the Commissioner focuses on systemic issues.  While the remedies available to a complainant may be similar, there was significantly less chance of achieving redress through the PHIPA procedure since individual complaints rarely resulted in an order by the Commissioner.  The authorities advanced by the Hospital were also distinguished.  In the result, the appeal was dismissed and the matter was permitted to proceed in the courts.

It remains to be seen whether the class proceeding will be certified by the Superior Court, but given the decision in Evans v. The Bank of Nova Scotia (discussed here), it is likely that the representative plaintiff can get past this hurdle.  So, what does it mean for employers who are responsible for collecting, using and disclosing PHI?  Well, in addition to the risk of being publicly shamed through the PHIPA enforcement procedure, personal health information custodians also bear the risk of being held vicariously liable for breaches of privacy by their employees.  Employers who possess PHI (whether covered by PHIPA as "personal health information custodians" or not) will want to ensure that they have robust policies, clearly communicate expectations to employees, provide adequate training on privacy protection, and implement effective safeguards to prevent unauthorized access and disclosure of such information.  Failing to take these steps could result in significant liability.

Do you have questions about the protection of personal information?  Concerned about a potential "intrusion upon seclusion" claim?  Contact Lance Ceaser for cost-effective and expert help.

Claiming Privilege Over Workplace Investigation Records

Often employers will retain the services of an independent investigator (typically a lawyer) to investigate issues in the workplace, either expecting or assuming that the investigator's work product (such as notes and the written report) will be privileged and not subject to disclosure and production obligations.  However, if the work of the investigator is to be protected from later disclosure in the course of litigation, the employer must carefully consider the law of privilege prior to retaining a third-party investigator.  The recent decision of Master Short of the Ontario Superior Court of Justice in Howard v. London (City) illustrates the challenges.

Background

In 2012, a resident of the Dearness Home (a nursing home operated by the City of London) packed up his belongings and left the facility, unbeknownst to staff.  The resident had recently been moved from a secure part of the facility to an area that did not have the same access controls.  The resident managed to wander some distance up a very heavily travelled road before he stepped into traffic, was struck, and subsequently died from his injuries.  The death of the resident was widely reported in local media, which raised questions about how such a tragedy could have occurred.  The administrator of the Home was away on vacation at the time, but commenced an investigation immediately upon her return.  However, after only a few days, she was instructed to cease her inquiries, as the City had decided (on advice from external counsel) to conduct an independent investigation, using the services of a local lawyer.  At the same time, the Ministry of Health and Long-Term Care was also conducting its own investigation. Ultimately, the investigator was retained by the Interim City Manager to conduct an investigation into the City's policies, procedures and actions, oversight by the City Council, the City's procedures for investigating critical incidents, and whether City employees and representatives had complied with applicable standards, and to provide legal advice on same.

Before and during the investigation, there was evidence of several "Strictly Privileged and Confidential" email messages among a number of City staff, including the administrator of the Home, regarding the scope of the investigation.  The administrator was interviewed twice and provided some documentation requested by the investigator.  She was repeatedly reassured that she need not be concerned about the outcome of the investigation for her employment, and was specifically told that she could not have her lawyer present during the interviews.  At the end of the investigation, the administrator was advised that she could resign, failing which her employment would be terminated for cause.  She did not receive a copy of any interview notes or the investigator's report, and was given no opportunity to respond to its findings before she was terminated.  She commenced a wrongful dismissal claim and sought production of the investigator's file, including any notes and the report.  The City resisted the motion, claiming solicitor-client privilege and litigation privilege.

The Production Motion

In his decision, Master Short reviewed the evidence that was presented, including a number of the email messages among senior City staff that debated whether the investigation was for human resources purposes or to establish due diligence vis-a-vis resident care (in anticipation that the resident's family would likely bring an action against the City). In one email, the City Solicitor suggested that he would be prepared to seek Council's approval to retain "independent legal counsel... to provide advice and an independent privileged legal opinion" concerning the issues that were ultimately referred to the investigator.  The Master observed that this email was focused on obtaining advice in relation to potential civil liability regarding the death of the resident and made no mention of legal advice on potentially terminating an employee. It was also clear from the email that the City was retaining the lawyer to conduct a fact-finding investigation, not seeking a legal opinion (as suggested by the City Solicitor). Despite the reassurances allegedly given to the administrator, it was also clear that the investigation did have a HR focus, and was intended to determine outcomes for staff who may have had involvement in the incident.

The Master also considered the fact that the City had relied on the investigation in determining that the administrator should be terminated, and had disclosed this reliance to the media on more than one occasion.  The London Free Press reported extensively on the story, and quoted the Mayor tying the termination of the administrator to the report prepared by the investigator.

Under the Rules of Civil Procedure, all relevant documents are to be disclosed to the opposing party, "whether or not privilege is claimed in respect of the document".  Where a party claims privilege over a document, it must set out the basis for its privilege claim, and bears the onus of establishing that privilege applies.  The City claimed both that the investigation documents were covered by solicitor-client privilege, as the investigator was a lawyer whose retainer included the provision of legal advice, and litigation privilege, which applies to documents created by a party when litigation is occurring or is contemplated.  Master Short conducted an extensive review of the law applicable to both types of privilege and made several very helpful findings:

• Although solicitor-client privilege is designed to ensure justice and fairness, by allowing the free exchange of information necessary to a lawyer's representation of a client, it has its limits. For example, the exchange of communication between a client and a lawyer who has been retained only to address a specific legal matter will not be protected if the communication is unrelated to the retainer. Likewise, if the lawyer has been retained in some other capacity unrelated to providing legal advice or exercising the skills of a lawyer (i.e., acting as a fact-finder where legal skills are not required), no privilege will attach.
• In those cases where privileged applied to the findings of a lawyer-acting-as-an-investigator, the retainer was clear that the lawyer was to provide legal advice on the specific subject matter of the investigation or was using the specific skills of a lawyer (such as where a lawyer was investigating whether a member of the judiciary had acted inappropriately during a trial).
• When considering whether solicitor-client privilege attaches to records, the understanding of the parties is a factor.  Where the lawyer is presented solely as a fact-finder, and explains that his/her assignment is limited to certain factual matters, it is unlikely that privilege will attach or that it will be limited to those legal issues within the investigator's mandate.
• Unless the retainer specifies that the lawyer-investigator is to provide "legal advice" (rather than just "advice"), a court is less likely to find that solicitor-client privilege applies.
• One party to a privileged communication cannot assert privilege against someone else who also received the advice from the same lawyer, on the basis that the parties have "joint interests".
• In order for litigation privilege to apply, it must be contemplated that a specific claim will be made by or against a particular party.  Where communications involve an incident that may give rise to one particular type of claim (e.g., liability due to negligence), they will not be privileged in relation to a different type of claim (e.g., wrongful dismissal of the person who is found to be negligent).

In the result, Master Short concluded that the investigation file was not privileged, and ordered the City to produce it to the plaintiff (with any personal information of third parties redacted in accordance with the Municipal Freedom of Information and Protection of Privacy Act).  The investigator had been retained not as a lawyer (i.e., to provide legal advice or representation), but to find certain facts.  While the investigation may have been conducted in the contemplation of litigation by the family of the deceased resident, it was not related to a potential wrongful dismissal claim by the plaintiff.  Moreover, the City could not assert privilege against the administrator when she had been part of the communication with respect to the conduct of the investigation.

What Does It Mean?

For employers, this case provides some important guidance:

• Determine whether the employer wishes to maintain privilege over the investigation file.  If it is unlikely to be crucial, it may be advisable to retain a non-lawyer or hire a lawyer to act solely as a fact-finder to contain the costs of the investigation.  It is advisable to obtain legal advice before deciding whether privilege ought to be claimed.
• If a claim of solicitor-client privilege will be made, ensure that the retainer letter is clear that the lawyer-investigator is to make findings of fact and to provide legal advice or opinion on the basis of those findings.  Also ensure that the scope of the retainer is broad enough to cover the personal conduct or blameworthiness of individual employees, and that the advice sought includes labour and employment law advice and recommendations.
• If it's likely that some form of labour or employment litigation may arise from the matter under investigation, such as a civil action, grievance or human rights complaint, then there may be a basis for litigation privilege.  In that case, the investigator need not be retained to provide legal advice.  However, if the investigator will be only a fact-finder in this scenario, he/she should be retained by counsel for the employer (whether external or in-house), rather than by some other representative of the employer, and it should be clear that the investigator's findings are necessary for counsel to advise and represent the "client" (i.e., the employer) in relation to all potential forms of litigation.
• Communication with an investigator or in regards to the investigation must be handled delicately.  It is preferable for communication with the investigator to be with only one or two representatives of the employer, or with counsel for the employer (if possible).  Anyone who may fall within the scope of the investigation should not be included on any 'privileged' communication.  Erect a 'cone of silence' and carefully maintain it, or privilege may be "waived".

Unfortunately, the law of legal privilege is a very complicated area.  While the foregoing recommendations may prove helpful, they cannot be construed as legal advice, in the absence of a very fact-specific analysis of a particular situation.  If you are uncertain about how to undertake an investigation or whether you can assert privilege over the findings of an investigator, obtain legal advice.  Feel free to contact Lance Ceaser for guidance or to ask about investigation services.