Is litigation privilege afforded to “ingathered documents” like information gathered from social media sources? After raising this and other questions regarding litigation privilege, unprivileged original documents, and privacy issues, this author discusses how the litigation privilege issue might be approached by Alberta lawyers today and in the future. First, she provides a refresher of the basic principles of privilege in general and litigation privilege in particular. Next, she summarizes the leading Canadian cases dealing specifically with the application of litigation privilege to copies or collections of otherwise unprivileged documents. Last, the author makes suggestions for resolving this question in future.

This paper was presented at the 47th Annual Refresher – Civil Litigation program in April 2014.