Hudye Inc. v. Rosowsky – the risks of preparing (and relying on) notes for a questioning
The recent decision of the Honourable Mr. Justice M. D. Gates of the Court of Queen’s Bench of Alberta in Hudye Inc v Rosowsky, 2016 ABQB 724, serves as a caution to civil litigants seeking to prevent disclosure of privileged documents in the context of questioning. In this case, the Applicant, Rosowsky, sought an order directing the Respondent, Hudye Inc., to produce a document alleged to have been used by the Respondent’s witness, Greg Hudye, in preparation for questioning, to refresh his memory of past events.
The Applicant filed an affidavit swearing that, after being questioned at counsel for the Respondent’s office, he had observed Mr. Hudye reviewing the contents of a file while sitting in the reception area, and that, the following day, during Mr. Hudye’s questioning, Mr. Hudye had a piece of paper, on top of a file, in front of him. The Applicant further swore in his affidavit that the file in front of Mr. Hudye appeared to be the same file he observed Mr. Hudye reviewing the previous day.
Counsel for the Applicant questioned Mr. Hudye on the notes and the file in front of him. Mr. Hudye answered that they were his own notes, which he had prepared himself, utilizing other documents on “things [he] thought [he’d] get asked on.” He also stated that the file folder contained information that “everybody has” and that the information was not given to him by his counsel. Counsel for the Applicant requested the notes be marked as an exhibit, to which counsel for the Respondent objected; counsel discussed whether the notes and the file were producible, and Mr. Hudye interjected to state that he did not once look down at the notes during questioning.
The Court considered three issues on these facts:
- Whether the notes were privileged – either on a solicitor-client, or litigation basis;
- If the notes were privileged, whether privilege had been waived such that the notes were producible; and
- If the notes were not privileged, whether the notes were producible.
The Parties’ Positions
The Applicant submitted that:
- The notes were not protected by privilege. The Court should draw the adverse inference that the notes are not privileged because the Respondent failed to tender any evidence to support the position that the notes were privileged. Such evidence was easily obtainable; the Respondent could have sworn an affidavit stating the notes were privileged and were not reviewed by Mr. Hudye to refresh his memory prior to questioning; but they did not do so, despite having several months to submit such evidence.
- As the notes were not privileged, counsel should be permitted to cross-examine Mr. Hudye on them, as the Applicant’s sworn affidavit evidence before the Court stated that Mr. Hudye had reviewed them the day prior to his questioning.
- In the alternative that the notes were privileged, then that privilege was waived when Mr. Hudye used the notes to refresh his memory the day prior to questioning, as a waiver of privilege occurs when a witness refers to notes to refresh his or her memory at any time before or during questioning (R v Fast, 2009 BCSC 1671). The Applicant again asked the Court to draw an adverse inference, as the Respondent failed to adduce any evidence disputing that Mr. Hudye had used the notes to refresh his memory.
The Respondent submitted that:
- The notes were subject to solicitor-client privilege as they were prepared by Mr. Hudye, and pertained to discussion with counsel.
- The notes attracted litigation privilege because they were prepared on the basis of documents produced during discovery, and provided to Mr. Hudye through counsel.
- Privilege had not been waived, as a witness must refer to the document during questioning to refresh his memory (Bradley v Eastern Platinum Ltd, 2015 ONSC 108), and Mr. Hudye stated under oath, as evidenced by the questioning transcript, that he did not look at the notes during questioning.
- In the alternative that the notes were not privileged, they are not relevant, and therefore, are not producible.
- The Applicant’s sworn affidavit evidence was mere speculation. The Applicant could not have known whether the file Mr. Hudye was reviewing the day prior to questioning was in fact the same file Mr. Hudye had at questioning, or whether the notes were part of the file Mr. Hudye had been observed reviewing.
Analysis and Holding
Were the notes privileged?
The Court held that the burden was on the Respondent to establish that the notes were privileged; a bare assertion of privilege is insufficient – evidence is required. The Respondent failed to advance any evidence before the Court that the notes were privileged. The assertion of Respondent’s counsel during questioning that the notes were privileged was not evidence, and was insufficient to establish privilege. The Court held that when Mr. Hudye said he looked at documents “everybody has,” he was referring to documents that were part of the disclosure.
The Court applied the test from Solosky v The Queen,  1 SCR 821, which sets out three criteria for the application of solicitor-client privilege. Each criterion must be established for each document alleged to be protected by solicitor-client privilege. Applying this test, the Court held there was no evidence the notes (i) were a communication made by Mr. Hudye and his counsel; (ii) entailed seeking or providing legal advice; or (iii) were intended to be confidential. Thus, the notes did not meet the Solosky criteria, and therefore did not attract solicitor-client privilege.
Due to the absence of affidavit evidence of the Respondent before the Court, the Court held that the Respondents had relied entirely on the contents of Mr. Hudye’s questioning to support their positions. It is settled law that litigation privilege attaches to a document created for the dominant purpose of litigation (Blank v Canada (Minister of Justice), 2006 SCC 39). The Court, relying on this authority, agreed with the Applicant’s submission, that evidence to establish privilege was obtainable through a sworn affidavit, and the absence of such evidence supports the Applicant’s contention that no privilege attached to the notes. The Court held that the dominant purpose for the preparation of the notes was to assist Mr. Hudye by refreshing his memory during questioning and as such the notes were not protected by litigation privilege. There was no evidence the notes were created at the request of, or intended to be shared with, counsel. Mr. Hudye testified that he created the notes himself, in relation to matters he anticipated being questioned about, and there was no evidence to suggest the notes were intended to assist with ongoing litigation beyond refreshing his memory.
If the notes were privileged, was privilege waived?
While the Court held that the notes were not privileged, Gates J. nevertheless went on to consider, in the alternative, if the notes were in fact privileged, whether that privilege was waived, making the notes producible.
The Court affirmed that the burden is on the party seeking disclosure to establish waiver of privilege.
The parties agreed privilege can be waived when a witness refers to notes for the purpose of giving evidence at questioning; they disagreed on the relevant time frame to be considered in determining whether the witness referred to notes for the purpose of refreshing their memory. The Applicant advanced a broad interpretation – that it is sufficient to have referred to the notes anytime “during or before” the questioning – while the Respondent advanced a more narrow interpretation – that a witness must refer to notes during the questioning.
The Court accepted the reasoning in Fast that the issue is the degree to which the witness has relied upon the document to refresh their memory and that the time frame is relevant, though not conclusive. The Court stated it is “reasonable to assume that the closer in time to their testimony a witness refers to a document to refresh their memory, the higher their degree of reliance is on that document” (at para 44). Whether a witness refreshes their memory a minute before entering questioning or during the questioning itself, should not be determinative of the issue. The Court stated, at paragraph 45, that “making a distinction between refreshing one’s memory prior to an examination and refreshing one’s memory during an examination serves no purpose towards advancing trial fairness”; the principle that a witness waives privilege by refreshing their memory is grounded in this governing principle of trial fairness.
Gates J. accepted that the Applicant did not, and could not, swear the contents of the file he observed Mr. Hudye reviewing the day prior to questioning were the same as the contents of the file in front of Mr. Hudye during questioning. However, in the absence of evidence from Mr. Hudye, the Court found that the Applicant’s observations supported a reasonable inference that the files were in fact the same. According to Gates J., Mr. Hudye waived privilege, if privilege existed, when he relied on the notes to refresh his memory – notwithstanding that he did not look at the notes during questioning.
This decision should serve as a warning for litigators – if your witness requires notes for review in preparation for, or refreshing memory during, questioning, it is prudent to advise them, as well as your client, of the risks of such notes becoming producible; notwithstanding that the notes may refer to documents or matters that would otherwise be protected by privilege. As a further measure of protection for clients, counsel should undertake to review any notes their witness may seek to rely on, in advance of attending at questioning, to ensure such notes do not contain any information prejudicial to their client’s position.