The defendant bank brought a refusals motion seeking to compel answers to questions asked on the cross‑examination of an affiant concerning documents reviewed by counsel when drafting a claim.
The information sought related to whether the plaintiff had used documents produced in another action in alleged breach of the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure.
The court held that the requested information constituted solicitor‑client communications and was therefore subject to near‑absolute privilege.
The “future crime and fraud” exception to solicitor‑client privilege did not apply because an alleged breach of the deemed undertaking rule did not approach the level of criminal or fraudulent conduct required to displace privilege.
The motion to compel answers was dismissed.
