Can a plaintiff’s lawyer produce a prior written statement of a witness that is privileged?
British Columbia, Canada
The following excerpt is from R. v. Mitchell, 2018 BCCA 52 (CanLII):
In Shaw v. Wuttke, the plaintiff’s lawyer was ordered to produce a prior signed written statement of a witness so that the defendant’s lawyer could use it in cross-examination. It was claimed that the statement was privileged because it was part of the lawyer’s work product and the witness had not been shown to have refreshed her recollection with the statement. However, the majority of the court did not consider it important that the witness did not use the statement to refresh her memory or that it was not independent evidence because it was used only for impeachment purposes: We hold the immunity of the attorney’s work product in respect to a written statement ceases to exist when the person making the statement is placed on the stand as a witness at the trial. By becoming a witness the person subjects himself to the risks of impeachment and the attorney has had the benefit of his work product.
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