"In short, the test I am proposing is meant to be fair to both sides. Under it, disqualification will result if, upon consideration of the whole of the evidence, the moving party satisfies the court that there is a real risk that opposing counsel will use information from the privileged documents to the prejudice of the moving party and the prejudice cannot realistically be overcome by a remedy short of disqualification.
Turning to specifics, I begin by emphasizing that the risk of prejudice must be real. A fanciful, speculative or imaginary risk will not suffice. In short, there must be a realistic possibility that the confidential information will be used to the prejudice of the moving party.
Second, when I refer to “prejudice,” I simply mean “detriment.” Is there a real risk that the privileged information will be used to the detriment of the moving party in the proceeding at hand or proceedings closely connected to it? The nature and extent of the prejudice will vary from case to case depending on the content of the privileged information. In some instances, it may be high (substantial and pressing); in others, it may be trifling (minor and inconsequential). Manifestly, in deciding whether the remedy of disqualification is warranted, the court will wish to consider the nature and extent of the potential prejudice.
Third, the onus lies with the moving party to establish the requisite risk of prejudice. To meet that onus, it will, initially, fall on the moving party to establish that:
(1) opposing counsel has received confidential information protected by solicitor and client privilege;
(2) the confidential information is relevant to the matter at hand; and if so,
(3) the relevant confidential information is potentially prejudicial.
Once privilege, relevance and potential prejudice have been established, the moving party will have met its initial evidentiary burden. It will then be for the opposing side to adduce evidence, if it so chooses, to rebut the moving party’s evidence."
