Lawyers for two former Nortel Networks Corp. executives will not have to hand over the notes they took during their clients' interviews with Nortel investigators, a judge ruled Monday.
In a decision being closely watched by the legal community, Mr. Justice Frank Marrocco of the Ontario Superior Court ruled four lawyers representing Frank Dunn and Douglas Beatty do not have to comply with a Crown subpoena ordering them to produce notes from interviews their clients gave in 2004 when Nortel was investigating accounting irregularities.
Judge Marrocco said the notes were subject to "litigation privilege," which protects materials prepared by lawyers for use in legal matters like lawsuits.
"In performing his or her duty, a barrister has to be free from unnecessary interference," Judge Marrocco said.
"The prospect of a barrister being required to disclose his or her notes of the evidence would inevitably means that the barrister's thoughts and observations are no longer his or her own."
The Crown subpoenaed the handwritten notes at the fraud trial of the former Nortel executives as the only available record of the answers Mr. Dunn and Mr. Beatty gave during interviews about accounting issues at Nortel. The interviews were not recorded.
Legal experts have expressed concerns that a ruling ordering the disclosure of lawyers' notes could convince many to take fewer notes, and could even reduce the quality of their work.
University of Ottawa law professor Adam Dodek said the Crown should not have brought the motion to seek the notes because it would have caused "real mischief" in the lawyer-client relationship.
"This is a highly unusual practice in Canada and hopefully today's decision will stop that practice in its tracks," Prof. Dodek said.
The four lawyers were ordered in a pre-trial hearing last year to testify about the interviews their clients gave to Nortel investigators in 2004. They are scheduled to begin testifying Thursday, but will now give their evidence without the Crown seeing their notes from the interviews.
It is unclear how much the four lawyers – including Bay Street veterans Thomas Heintzman and James Douglas – will be able to tell the court about the interviews without the use of the notes.
In earlier testimony during the dispute about the notes, Mr. Heintzman said he did not recall a lot of the specific comments made at the meeting Mr. Dunn had with investigators in 2004.
The judge's decision Monday orders the lawyers to review the notes themselves to refresh their memories, even though the Crown cannot see them.
But the judge also said the lawyers don't have to read the notes if they believe the notes won't be helpful to refresh their "present recollection" of the interviews.
The judge also said the dispute over the notes could have been avoided if Nortel's audit committee had told the investigators to record the interviews.
"I find it strange that such a highly personal portion of a barrister's work product should be disclosed because Nortel's audit committee decided that it did not want a transcript or a video-recording of the interviews," Judge Marrocco said.
Lawyers for Mr. Dunn and Mr. Beatty said they could not comment on the decision because the fraud trial is still ongoing.
The long-running trial began in January, and the Crown has said it expects to complete its witnesses by the end of June.