In order to assist establishing the existence of an identifiable class, Plaintiff counsel commonly adduce evidence of the number of putative class members who have contacted counsel about the action. Plaintiff counsel attempted to use this familiar tactic in Currie v Merck[1] a proposed class action involving two drugs, Propecia and Proscar, alleged to cause permanent sexual dysfunction.

The plaintiff filed two affidavits from IT personnel that 70 persons had “joined a contact list” by providing information through a webpage dedicated to the Propecia and Proscar class action. Justice Keene described the webpage as “to a degree, a solicitation web page.” Information about the breakdown of provincial residence was provided along with some information about the nature of the complaints described by the persons who joined the contact list (which in other parts of the Affidavits were described as the Propecia/Proscar database).

The IT personnel also provided samples of the comments left on the database. The Defendants asserted that one comment indicated the complainant did not take either Propecia or Proscar and instead took a drug called Avodart manufactured by a different company that was subject of separate litigation. Notably, the Propecia and Proscar webpage confusingly made reference to Avodart in addition to Propecia and Proscar. With these facts, and the numerous references to the contact list and database in the affidavits, the Defendants brought a motion to compel production of the contact list and database based on a rule requiring production of documents referred to in affidavits.

The Plaintiffs resisted production on the basis of solicitor client privilege, relying, in part, on the statement appearing on the Propecia/Proscar webpage that all information provided would be kept confidential. The Defendants relied on the line of authority that no counsel relationship exists between representative plaintiff counsel and putative class members. They disputed whether a solicitor client relationship was established by putative class members providing information for a contact list, and even if it existed such privilege was waived with the decision to file the evidence from the IT personnel in the manner he did.

Justice Keene described the situation as an “awkward matter”. While wanting to respect promised confidentiality and to promote access to justice through the use of tools like websites, the Court was also faced with the Plaintiff expressly referring to and relying on information from the database to establish the nature and size of the class. The Defendants argued it was unfair for the Plaintiff to rely on as much as he pleased from the database especially since it was readily apparent the database included some persons who did not take Propecia or Proscar (due to the mistaken references on the Propecia/Proscar webpage to Avodart).

In the end, Justice Keene relied on the inherent jurisdiction of the Court to order the removal of the two affidavits from the certification record thereby avoiding the need to determine the privilege and waiver issues.