What remedies are available to a plaintiff who has received privileged information from an opposing party but not used it in litigation?

British Columbia, Canada


The following excerpt is from 888 Fort Street Holdings Ltd. v. Ross, 2017 BCSC 579 (CanLII):

The authorities, like Celanese, generally address circumstances where counsel has received the privileged documents of the opposing party but not used the documents in the litigation. Even when the privileged information comes into the opposing party’s hands through “self-help”, which as appears to have been the case here, the remedy typically sought by the aggrieved party is the removal of the offending party’s counsel of record. Other remedies that might be ordered include the return or destruction of the privileged communications and/or restraining the offending party from further use or reliance on the communications: Nielsen v. Nielsen, 2017 BCSC 269 at para. 85. Whether the breach of solicitor-client privilege was advertent or inadvertent, any remedial action ordered should be “curative not punitive”: Celanese, para. 35.

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