May a Plaintiff Compel a Defendant’s Lawyer to Identify His/her Client?

A U.S. court has ordered a lawyer for a defendant in a defamation action to identify his client. Could this be done in Canada? Is it routine? I know that there is Canadian case law on requiring Internet intermediaries to identify users, for both civil and criminal proceedings. I am not aware that lawyers can be required to do so – but maybe that is just because i am no barrister.

The lawyer claimed attorney-client privilege in refusing to answer. If a lawyer shows up in a court proceeding on behalf of a ‘John Doe’ client, is the identity of the actual person a matter of privilege? Is the fact that one is providing legal advice to a person a matter of privilege, once the proceedings are under way, as distinct from the content of the advice?

The alleged defamation had occurred on Twitter. Does that matter? Did the plaintiff seek the name from the lawyer because he was more accessible than Twitter, both personally and as counsel on the record in the action? Twitter could not have raised any privilege argument against disclosure.

The anonymous defendant had died since the beginning of the action. Does that matter? In Ontaio, it would. Subsection 38(2) of the Trustee At preserves tort actions against deceased persons, except for libel and slander.

It does not appear that this is really a social media case – the use of Twitter is irrelevant to the merits of the request, probably. However, its name made it momentarily relevant to this list, and the law of defamation overlaps with the law of e-communication pretty frequently, so here we are.

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