Court Rejects Request to Produce Settlement Documents From Previous Injury Claim

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a request to produce documents relating to the settlement of a previous personal injury claim in the prosecution of a subsequent claim.
In today’s case (Gamble v. Brown) the Plaintiff was injured in a 2009 collision, brought a claim for damages and ultimately settled.  She was then injured in a 2011 collision.  In the current lawsuit the Defendant requested broad production of the previous file information including “any mediation brief, settlement letter, file memo, communication or similar document” .  The Plaintiff agreed to produce relevant medical records but not all records captured in the broad request.  The Defendant applied to court for an order to produce these documents but this was dismissed.  In finding the sought order was inappropriate Master Taylor provided the following reasons:

[29]         In the case at bar, the first accident occurred on March 19, 2009. The subject accident occurred on September 1, 2011. By account of some of her physicians, and at least one expert report prepared for the defendant, the plaintiff was doing well and not suffering any effects from the 2009 accident well before the occurrence of the 2011 accident.

[30]         As well, the plaintiff has offered the defendant a letter from her previous solicitor confirming the terms of the settlement she received for the injuries she sustained in the 2009 accident, together with medical-legal documents from the previous accident.

[31]         In this case, I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor.

[32]         The final question becomes whether or not the plaintiff should place any terms on the production and disclosure of the documents she has provided to the defendant. In my view that is a matter for the trial judge to determine at the outset of the trial and in the absence of the jury, aside from the issue of the plaintiff maintaining her solicitor-client privilege with Mr. Wytrychowski, which should be preserved in any event.

[33]         In conclusion, I determine that the defendant has not satisfied me that I should order breach of the settlement privilege attached to the documents prepared by the plaintiff’s previous counsel for the plaintiff in the 2009 Alberta case. Accordingly, the defendant’s application is dismissed with costs to the plaintiff.