Privileged Witness Statement Ordered Produced When Witness Becomes Party

Interesting reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing whether an otherwise privileged statement can be ordered to be produced in litigation where the statement was given by the opposing party.
In last month’s case (Cliff v. Dahl) the Plaintiff was injured in a collision when he was struck by a vehicle driven by the Defendant.  Shortly after the collision the Plaintiff’s lawyer obtained witness statements from a Mr. Weaver and Mr. Jones.
In the course of the lawsuit the Defendant Dahl requested production of these statements but the application was dismissed finding the statements were privileged.  Later Mr. Jones and Mr. Weaver were added as Defendants in the lawsuit.  They brought their own application for production.  Ultimately this was successful with the Court finding a different analysis is required when a party is seeking production of their own statement.   In compelling production Madam Justice Bruce provided the following reasons:

[35] Based on these authorities, I am satisfied that Mr. Weaver and Mr. Jones are entitled to a copy of the statement they provided to Mr. Cliff’s investigator. While their statements as witnesses would not be compellable due to litigation privilege, the change in their status to parties adverse in interest to Mr. Cliff place them on a different footing. Disclosure of these statements is necessary to ensure fairness in the litigation process, to enable these parties to properly defend themselves against allegations of negligence, and to support the truth seeking function of the court. Production of these statements is neither counter-productive to the adversary process nor to the confidential relationship between solicitor and client.

[36] The facts here present a particularly compelling case for production of the statements. The applicants permitted Mr. Cliff’s investigator to take their statements at a time when they were not represented. They were not offered copies of their statements nor advised to seek legal advice about this matter. In addition, Mr. Cliff interfered with the insurer’s investigation of the claim by counselling the applicants not to give a statement unless they first contacted his lawyer. By taking these steps Mr. Cliff’s actions may have prevented a timely statement from the applicants that could have formed a substitute for the statements taken by his investigator. Now that five years have elapsed since the date of the accident, it is apparent that the applicants’ memory of the events has faded. While there is nothing improper about Mr. Cliff’s conduct, it has imbued the applicants’ case with more of a sense of urgency and necessity. There is simply no other means by which the applicants could refresh their memories of the events surrounding the accident.

[37] For these reasons I order production of the signed statements of Mr. Weaver and Mr. Jones in possession of Mr. Cliff’s counsel and the audio recording of the statement. It is not appropriate that I order production of the transcript of the audio recording. This is an aid to follow along with the audio recording and commissioned by Mr. Cliff’s counsel. There is no principle of law that would require Mr. Cliff to share this work product with the applicants. They are free to commission their own transcripts of the audio recording. The applicants have not sought copies of the notes taken by Mr. Cliff’s counsel during his interviews with them. I do not regard these as statements made by the applicants; they are notes to refresh counsel’s recollection of the interview and nothing more. Accordingly, these notes should not be made the subject of a production order.

[38] Mr. Cliff shall produce the audio recordings and signed statements to the applicants within 14 days of this order and upon payment of the reasonable costs for production of copies thereof.