Summary

The most interesting aspect of a recent Federal Court decision involving 26,000 privilege claims may not be the law of privilege, but rather what the case reveals about the increasingly industrial nature of modern eDiscovery.

Following the issuance of an order compelling the Canadian Real Estate Association (“CREA”) to produce records and information to the Commissioner of Competition, CREA produced approximately 50,000 records, and a privilege log containing approximately 26,000 entries, 5,000 of which were redacted.

Hundreds of thousands of dollars were spent on document review, which employed large-scale eDiscovery processes to ensure that every document withheld on grounds of privilege had been properly reviewed. The Commissioner brought a motion alleging that CREA’s privilege log failed to provide sufficient factual information to permit assessment of the validity of CREA’s privilege claims. CREA argued that its privilege log complied with accepted eDiscovery practices and relied in part on expert evidence from an eDiscovery specialist.

The Court granted the Commissioner’s motion in part and held that CREA’s privilege log did not comply with the order because it failed to provide “the factual basis” for the privilege claims “in sufficient detail” to permit the Commissioner to assess their validity.

The Court reaffirmed that parties claiming privilege bear the onus of substantiating those claims with sufficient descriptive information while avoiding disclosure of privileged content itself. Boilerplate assertions such as “communication created for the purpose of providing legal advice” were held inadequate because they merely restated the legal test for privilege without connecting the privilege to the actual document in issue.

The Court gave limited weight to expert evidence asserting that CREA’s privilege log complied with accepted eDiscovery standards. The Court held that generalized industry practices could not override the express wording of the production order, and that compliance with customary eDiscovery workflows did not answer the legal question of whether the privilege log contained sufficient factual detail under the order itself.

The Court ordered CREA to produce a revised privilege log within 90 days containing narrative factual descriptions explaining, where applicable:

the identity and role of lawyers involved
the identity of the client or aligned parties
the contemplated or existing disputes relevant to litigation privilege claims
the adverse parties relevant to settlement privilege claims
how each record or class of records fits within the asserted privilege

The Take-Away

Over the past two decades, the legal profession has become remarkably adept at managing information at scale, developing sophisticated review platforms, defensible workflows, coding structures, quality-control processes, analytics, and increasingly, AI-assisted review. These developments have transformed the economics and practicality of large-scale litigation, but they have not changed the underlying nature of legal judgment. Privilege remains a legal conclusion that must ultimately be justified: someone must still be able to explain why a document, or a category of documents, is entitled to protection.

Large reviews can gradually evolve from exercises in legal analysis into exercises in process management, in which decisions are coded, workflows are followed, and documents move efficiently through the system, even as the rationale underlying those decisions becomes increasingly detached from the final work product. The Court’s insistence on a factual basis for privilege claims serves an important function in this respect, preserving the connection between the legal conclusion and the reasoning that supports it. The requirement is a mechanism of accountability, even where hundreds of thousands of dollars were expended in a presumably good faith exercise.

For litigators and eDiscovery professionals, the practical implication follows naturally: where privilege claims are made, the reasoning supporting them should be captured during the review process itself, rather than reconstructed months or years later, since the most expensive privilege log is often the one that must be rebuilt because the original rationale was never properly documented.

Technology continues to make it easier to process vast quantities of information, which is itself a significant achievement. Yet this decision is a reminder that legal judgment does not scale as readily as document review. Privilege claims ultimately rest on individual legal opinions, and those opinions require lawyers who are prepared to assume responsibility for them.