Monday, 2 November 2015

Don’t judge a book by its cover: Affidavit of Documents (AoD)

As MB students, we are exposed to a wide range of assignments during our summer and articling terms. There is no doubt that some assignments are more popular than others simply because the tasks involved appear to be more “lawyer-like” vs. tedious. However, even tasks which appear to be boring provide a great insight into each case and, believe it or not, have their own highpoints. A great example is preparing an Affidavit of Documents (AoD).

Parties must disclose any relevant documents in their possession in order to avoid “trial by ambush”...

Document discovery is a significant process in pre-trial litigation. Parties must disclose any relevant documents in their possession in order to avoid “trial by ambush” and to encourage early settlement. Preparing an AoD, at times, requires sorting through large volumes of documents; and yes, this inevitably includes many paper cuts!

What's Relevant?
However, in preparing an AoD, you encounter an array of documents, including contracts, reports, invoices, photos, and correspondence between parties. While reading through these documents, you determine where the parties stand in the litigation. Also, it provides good practice for learning what type of documents are relevant in different cases.

Privilege
Furthermore, a decision has to be made whether privilege is to be claimed over any documents. This decision generates much discussion amongst the students. The most common forms of privilege encountered are settlement privilege, solicitor-client privilege, and – the number one discussion item – litigation privilege.

picture courtesy of scottchan and free digital imagesUnfavourable Information
In one assignment, we had to determine whether litigation privilege could be claimed over an accident report prepared by an employer on the date of loss for injuries suffered by an employee at work. While the report described the clients’ injuries, it also contained some unfavourable information. However, unfavourable or not, we could not claim litigation privilege based on this. The decision is based on when the document was produced (to determine if it was made before reasonable contemplation of litigation) and ascertaining its dominant purpose.

As you can see, while preparing AoDs may at first glance seem like a boring task, it can provide a great opportunity to assess the subject file and enhance your analysis of what is deemed to be “relevant” or “privileged”. I guess it’s true when they say: “never judge a book by its cover”.

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