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Compelled disclosure of strategy information due to breach of the implied undertaking

In Holman v. Nguyen, 2000 BCSC 1915 the court ordered disclosure of an examination for discovery report which had been shared in violation of the implied undertaking. In that case the plaintiff brought successive claims arising out of two motor vehicle accidents. The examination for discovery report prepared by defence counsel in the first action was shared with defence counsel in the second action. The court held that there was no common interest between the successive defendants and that the common interest exception to waiver of privilege did not apply, and so ordered production of the discovery report which had been listed on the defendants’ list of documents in the second action. The court held that the plaintiff was also entitled to disclosure of that report on the basis that providing that report to counsel in the section action was a breach of the implied undertaking with respect to the information disclosed in the first action:
 
There is another reason that I am ordering production of this document. There is authority that examination for discovery of a party in one action cannot be used in another action without the party’s consent or court order: Edgeworth Construction Ltd. v. Thurber Consultants Ltd. (1996), 18 BCLR (3d) 127 at 131 (SC).  The plaintiff deposes that she did not authorize ICBC to access documents in its possession or that of anyone else except in respect of the July 15, 1999 accident.  I understand that the document in question reports on the examination for discovery of the plaintiff in the prior action. It appears that the disclosure by ICBC of this document may be contrary to the authority that would restrict the use in this action of examination for discovery of the plaintiff in the prior action.  In my view, fairness requires that since the document has been disclosed to the defendant, the plaintiff have access to it as well.
(Holman v. Nguyen, 2000 BCSC 1915 at para. 7).
 
 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing claimants in motor vehicle accident claims, persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.