master schlosser

5.2: When something is relevant and material
5.33: Confidentiality and use of information

Case Summary

In an Action related to the Defendants’ reporting of the Plaintiff law firm’s billing in a family law matter, the Plaintiff applied to compel answers to questions objected to at Questioning. Specifically, the Plaintiff sought the name of a Defendant journalist’s confidential source.

Master Schlosser considered whether the information sought was relevant and material pursuant to Rule 5.2, and whether importance of the disclosure outweighed the public interest in maintaining confidentiality over the journalist’s source. Master Schlosser noted that the “starting point” is to ascertain the issues in the pleadings that the evidence would help resolve, and lines of inquiry that are “unrealistic, speculative or without any air of reality” should be rejected. Master Schlosser held that the records sought by the Plaintiff related to a number of the issues that were in dispute, and therefore were relevant and material. In this case, the issues were malice, recklessness and improper purpose to the journalistic publications.

Master Schlosser noted that, even though the information may be relevant and material, it may still be protected under common law privilege, and therefore subject to the four Wigmore criteria. Master Schlosser considered whether the information in this case was privileged, noting that any disclosure was subject to the express undertaking in Rule 5.33, and that the Defendants had the right to object to the admissibility of the evidence pursuant to Rule 5.2(2). Master Schlosser granted the Plaintiff’s Application to obtain information relating to the journalist’s source.

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