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Neesons court reporters trained to aid in guarding privilege

By AdvocateDaily.com Staff

Properly trained court reporters can help lawyers protect solicitor-client privilege, says Neesons, a Veritext Company, founder and principal, Kim Neeson.

In a recent Ontario Superior Court of Justice case, the defendant in an insurance dispute asked the judge to rule that the plaintiff had waived privilege on a series of audio recordings containing discussions between it and its lawyer.

Neeson says her reporters and transcribers are all well-versed on the concept of privilege and will take proactive steps to ensure protected communications are not captured as part of the court record.

“If things are left unchecked, microphones can be left on, and whispering between client and counsel will be picked up,” she tells AdvocateDaily.com.

“In the digital age, the great thing about having professional court reporters is that they have the training to make sure those things don’t slip through the cracks.”

Neeson says court reporters have to tread particularly carefully during examinations for discovery when communications between parties and their lawyers frequently switch between on and off the record.

“Court reporters need to understand the difference, and recognize which conversations are private, but risk being heard,” she says. “When proceedings go off the record, reporters should also stop any backup recordings they’re running, so there’s no way it can get out, even accidentally.”

The recent court case concerned a restaurant’s claim against its insurance broker. The restaurant’s owner alleged the broker had given negligent advice, which led to the purchase of inadequate business interruption insurance.

The recordings at issue — contained on a compact disk with 24 files — covered conversations between the restaurant’s principal and lawyers he had hired to deal with the fallout from a flood at the company’s premises.

They were listed as withheld due to solicitor-client privilege by the plaintiff during the discovery process but were then mistakenly sent to the defendant by another law firm acting for the plaintiff.

One of the defendants claimed the accidental leak constituted a waiver of privilege and asked for a full production of the recorded lawyer’s file.

Despite a delay in the plaintiff reasserting privilege over the recordings, the judge in the case ruled that solicitor-client privilege had not been waived.

The delay was “not sufficient reason to punish” the plaintiff, the judge concluded, noting that privilege belongs to the client and that the fault lay not with him, but with his lawyer.

“Proper care of all legal communications needs to take place to ensure mitigation against risk,” says Neeson.

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