Litigation privilege: also called work product privilege, applies to communications between a lawyer and third parties or a client and third parties, or to communications generated by the lawyer or client. Generally, it is information that counsel or persons under counsel's direction have prepared, gathered or annotated (IPEX (e.g. retaining experts/trial strategy related documents) *strategic
“Dominant purpose” of document sought to be cloaked in litigation privilege must be for litigation, and must be contemplated for litigation (Lizotte; IPEX)
Lizotte (citing Blank) affirms dominant purpose test and distinguishes it from solicitor-client privilege:
Stands only against adversary (not the whole world), and only as long as litigation is ongoing –
once over, no longer privileged
Different motivation: litigation privilege is premised on basis of adversarial litigation process (allows counsel fully to investigate and prepare case, both with clients and with third parties)
However, the two privileges can overlap (i.e., a document or communication covered by one can also be covered by the other)
“Without Prejudice” (Settlement) Privilege: protects communications between parties during attempts to settle from subsequently being used in the proceeding if settlement fails (for example, if discussed settling for a lower $$$ amount than suing for); promotes early resolution, collaboration, etc. (IPEX; UnionCarbide)
