Esson, J:—This is a proceeding under section 232 of the Income Tax Act. The petitioner seeks a determination of the question whether it is entitled to solicitor client privilege with respect to certain of its documents and files to which the director-taxation of the Department of National Revenue has sought access.
The issue arises our of an investigation which the director has been carrying on since 1979, when a field audit was launched. After the first stage of the audit, the assessors presented a number of written questions and, after receiving a response, requested access to the petitioner’s files. As a result, they have had access to a large number of files and have been made aware of the existence of the documents and files here in question. The petitioner has objected to producing those on the ground of privilege. A demand for their production has been made under subsection 231(3), a custodian of the documents has been appointed and this petition brought to determine whether the claim for privilege is well founded.
The director’s investigation is aimed at certain dealings between the petitioner and a number of companies with which, in one way or another, it has a degree of affiliation. Both the dealings and the relationship between the various companies are complex but the issue, simply put, is whether the petitioner, in dealings not at arm’s length, sold at less than the fair value of the product or incurred more than its fair share of expenses.
There has not been a reassessment. The purpose of the investigation is to determine whether there is a basis for reassessing. It can be assumed that, unless the director is satisfied by the investigation that his suspicions are unfounded, there will be a reassessment and an appeal by the petitioner.
The application provided for by subsection 232(4) has been heard. The custodian has, as directed, delivered the two sealed boxes of documents to the court to permit my inspection of them and I have read so much of each document as I considered necessary to determine the question.
Subsection 232(1 )(e) provides:
(e) “solicitor-client privilege” means the right, if any, that a person has in a superior court in the province where the matter arises to refuse to disclose an oral or documentary commuinication on the ground that the communication is one passing between him and his lawyer in professional confidence, except that for the purposes of this section an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be such a communication.
There is here no question of oral communications nor does the exception with respect to lawyers’ accounting records have any application. The question therefore is: What right does the petitioner have in this court to refuse to disclose a documentary communication on the ground that it is one passing between it and its lawyer in professional confidence.
The basic rule I take to be as stated in Cross on Evidence, 4th ed at 248-9:
In civil and criminal cases, communications passing between a client and his legal adviser together, in some cases, with communications passing between these persons and third parties may not be given in evidence without the consent of the client if they were made either (1) to enable the client to obtain, or the adviser to give, legal advice; or (2) with reference to litigation that is actually taking place or was in the contemplation of the client.
It is pointed out in para 17 of the 16th Report of the Law Reform Committee that the privilege covers three kinds of communication:
(a) “Communications between the client or his agents and the client’s professional legal advisers;”
(b) “communications between the client’s professional legal advisers and third
parties, if made for the purpose of pending or contemplated litigation;”
(c) “communications between the client or his agent and third parties, if made for the purpose of obtaining information to be submitted to the client’s professional legal advisers for the purpose of obtaining advice upon pending or contemplated litigation.”
In the following discussion, communications under heads (b) and (c) may be taken together, and the term “legal adviser” simply includes a solicitor and a barrister.
Many of the communications for which privilege is claimed were to or from Mr Gordon M Clark, who is vice-president, secretary and general counsel of the petitioner. There is no distinction, for the purpose of a claim to legal professional privilege, between lawyers in private practice and salaried legal advisers such as Mr Clark. That question was considered in Alfred Crompton v Commissioners of Customs, [1972] 2 QB 102; [1972] 2 All ER 353, affirmed [1973] 2 All ER 1169. The Court of Appeal there held that Forbes, J, the chambers judge, had been wrong in holding that communications inside an organization, which has an internal legal branch, are not protected. That aspect of the decision was not challenged when the matter came before the House of Lords. On this hearing, Mr Jackson accepted it as correctly stating the law in this province but emphasized that Mr Clark’s legal hat is one of several which, by the nature of his position, he is called upon to wear in carrying out his duties. Privilege can, of course, arise only in respect of those communications made to or by him while wearing his legal hat.
The second branch of the rule of privilege, ie where litigation is in being or contemplated, requires a determination as to the point at which litigation was in contemplation. In order for privilege to arise, there must be a definite prospect of litigation as opposed to a vague anticipation of it: Condy v Mark, 31 DLR (3d) 626.
In the circumstances of that case, it was held that a complaint by the eventual plaintiff to the defendant stockbroker was, in the circumstances, sufficient to give rise to a definite prospect of litigation. In the context of dealings between a taxpayer and Revenue Canada, I think it clear that litiga- tion may be definitely in prospect prior to any formal legal step such as a reassessment being taken. It may be when the Minister, by word or deeds (such as the implementation of a field audit), gives a definite indication of not accepting the position set out in the return. Or it may be at an earlier stage, at which there may have been no communication between the taxpayer and the department, but where the former recognizes the existence of a possible issue. The question is one as to what was in the mind of the person Claiming privilege.
In Alfred Crompton v Commissioners of Customs (supra) privilege was claimed by the commissioners in relation to a question as to the proper amount of purchase tax to be paid. The chamber judge held that amount of privilege could not arise until the date when the commissioners gave their opinion as to the proper rate. That was a prerequisite to any litigation on the subject and a point somewhat analogous to a reassessment under the Income Tax Act. The Court of Appeal, whose decision on this point was upheld by the House of Lords, decided to examine the documents to determine the question and, having done so, held that litigation had been anticipated at an earlier date, that being upon receipt of a letter from the taxpayer setting out its position. At page 378 Lord Denning, MR said:
Having inspected them, I am quite satisfied that, as from 31st July 1967, the commissioners anticipated litigation. Prior to that time the commissioners had acted on the arrangement made between them and the company, whereby an allowance of 17 /2 per cent was made to cover retailing and services. But, when the commissioners received the letter of 31st July 1967, they realised that the company were determined to challenge the arrangement. They foresaw that this challenge might lead to arbitration. So they made all their investigations to meet the challenge. They gathered material for the purpose. This was, I think, all in anticipation of litigation.
In this case, the issues relate to dealings in the period 1974 to 1978. It is not beyond the bounds of reason to think that, in some degree, litigation may have been in contemplation in relation to income tax liability as early as 1974 because it is possible that, in the execution of the usual battle of wits between the taxpayer and the department, the taxpayer may properly enough have decided to structure some aspect of its dealings to reduce tax liability in a way which foreseeably could be challenged by the Department. However, I find no definite evidence of the petitioner giving consideration to the possibility of an issue with the Department in relation to these matters before October, 1977. The documents, and particularly a privileged memorandum of October 3, 1977, make it clear that, by that time, active consideration was being given to the income tax implications of the inter-company dealings. I therefore take that date as being the point at which litigation was in contemplation so as to give rise to the second head of privilege.
Some of the documents, although not prepared in anticipation of litigation with Revenue Canada, relate to other litigation, contemplated or actual. Those documents I have treated as coming under the second head of privilege.
There is no assertion or suggestion of any fraud or other improper conduct on the part of the petitioner and therefore no basis for application of the rule that the privilege attaching to solicitor-client communications may be lost where the communications or advice were in furtherance of a fraud.
In respect of a number of the files, I have applied the rule that where the documents or copies of documents which are not otherwise privileged form part of the collection assembled by or at the request of the lawyer, the whole of the collection is privileged: Lyell v Kennedy (1884), 27 Ch D 1. That rule was applied by Collier, J. In re Hoyle Industries Ltd and Hoyle Twines Ltd, [1980] CTC 501; 80 DTC 6363, a recent decision on an application similar to this one.
On the hearing, Mr Thorsteinsson submitted a “description and commentary of documents” which I will refer to as the “outline”. It assigns a number to each file folder in the two boxes of documents which were the subject of the original application. In each case, I have noted that number on the outside of the folder in the upper right hand corner. Some of the file folders contain only one or two documents whereas some contain a very large number, some appear to be the file as originally assembled in the ordinary course of business while others are assemblies which appear to have been for the purposes of this application. In those files in which I considered it necessary to distinguish between individual documents or groups of documents I have assigned them letters in the order in which the description appears in the outline. eg, in file 4 of Box A, the four memoranda referred to have been designated by me as A, B, C and D and I have noted that letter on the upper right hand corner of the first page of each document. In some cases where I was Satisfied that the description in the outline is accurate and that nothing more need be said, I have simply stated that. It should not be inferred that, where I have not used that formula, I found the description inaccurate but rather that, for one reason or another, I found it necessary to deal more extensively with the particular document.
Following the hearing, and upon examining the files, I was left in some doubt as to the extent to which the description and assertions in the outline were intended to be assertions of fact and which were intended merely as submissions. To resolve that difficulty, the parties agreed that a further affidavit could be received from Mr Clark and, in due course, a further affidavit was submitted by him. At the same time, the application was broadened to include additional documents which were not in the boxes marked A and B. Mr Clark’s affidavit included a memorandum, similar to what I have called the outline, dealing with that third group of documents. His affidavit swears to the truth of certain of the facts in the outline. It was agreed by the parties that I should resolve the question of privilege with respect to that third group of documents as well as those originally submitted to me. As will be seen from the schedule attached to these reasons, I have done that.
The two boxes have been re-sealed. The third group of documents, which I have designated with the letter “C”, have been placed in a third box which has also been sealed. The custodian should make arrangements with the court Registry to take possession of all three boxes. Those documents in respect of which I have held the petitioner not to have a solicitor-client privilege will be delivered to such person as may be designated by the Deputy Minister of National Revenue for taxation.
My decision with respect to individual documents is set out in the schedule which is attached to and forms part of these reasons.
Schedule of Rulings
Box Marked “A”
1. File marked “Bundle of 1977 Greens — P D Mare”
This is, as claimed in the outline, a request for legal opinion from Mr Clark and is therefore privileged.
2. File marked “PDM CZ International” (Box GLP/PDM)
This memorandum was provided to Mr Clark to provide facts for the purpose of allowing him to give legal advice and is therefore privileged.
3. File marked “0-2 Orchids Paper” GLP/79
This file contains correspondence between Mr Clark and the New York attorneys who acted as counsel for the petitioner in the litigation involving Orchids Paper. It includes material assembled by the lawyers for the purpose of advising upon and conducting the litigation. The whole of the contents of the file are privileged.
4. P-10 Pulp General GLP/79 from Box GLP/PDM
(a) A copy of Sullivan and Cromwell’s account and a memorandum as to how it should be charged as between the petitioner and other companies. It is not a privileged communication.
(b) The memo of June 21, 1979 to Mr Clark sets out information regarding shipments of pulp, etc, during the years covered by the investigation. I find no evidence that it was sent because of any legal considerations or that it was sent to Mr Clark in his capacity as legal adviser. It is not privileged.
(c) A memo from Mr Mare to Mr Clark which is partly an inquiry on questions of fact but includes an implied request for legal advice based on the wording of certain contract clauses. It is privileged.
(d) A memo referring to the advisability of assigning a shipping contract. I see no evidence that this is related to legal advice or any litigation contemplated or otherwise. Not privileged.
5. PDM Income Taxes
(a) A lawyer’s letter giving advice. Privileged.
(b) An internal memorandum discussing that advice. Privileged.
Document (c) is a discussion as to the response to be made to FIRA. Mr Clark sent the memo of 12 September, 1979, but I find no evidence that he did so in his capacity as legal adviser or that any legal advice is given even incidentally. Not privileged.
6. PDM 1980 Greens (Box GLP/PDM)
(a) A report to Mr Clark on a discussion with Elk River. There is no indication that this information was conveyed to Mr Clark for the purpose of giving legal advice or in his capacity as legal adviser. Not privileged.
(b) Not privileged for the same reasons given for (a).
(c) A letter to Mr Thorsteinsson — related to seeking advice from him and therefore privileged.
(d) Privileged for the same reason given for (c).
The remaining documents in this file ((e) to (I)) are all memoranda and letters related either to seeking and receiving legal advice or discussing it within the company. They are therefore all privileged.
7. 1975 Greens (PDM) — Mise Box
A letter to counsel seeking advice. Privileged.
8. Brown Kraft Transfer Binder entitled 1-1 Income Tax Audit — Fed Govt — GLP/80
The contents of this binder as explained in the outline are material prepared within the company to develop responses to the questions put by the Department at a time when litigation was in contemplation. All are privileged.
9. Standard Wood Pulp Contract March, 1979 A1-21-(3) — Box GMC (II)
A memorandum to Clark and a response by him which constitutes providing information for and receiving of legal advice. Privileged.
10. PDM 1979 Greens (rom Box GLP/PDM)
(a) A memorandum to Mr Clark expressing the views of Mr Mare as treasurer as to the position which should be taken in allocating the price of the Elk River transaction. No indication that it was written for the purpose of seeking legal advice or was to Mr Clark as legal adviser. Not privileged.
(b) A memorandum relating to preparation for discussions with the auditors — deals with contemplated litigation. Privileged.
(c) A memorandum from Mr Mare to Mr Clark discussing proposed terms of pulp agreement then under preparation. This is in essence information provided to enable legal advice to be given. Privileged.
(d) A memorandum to the director of Taxes relating to aspects of tax questions where litigation was anticipated. Privileged.
11. PDM — CZ Corporation (Box GLP/PDM)
A communication to outside counsel for the purpose of enabling him to give advice. Privileged.
12. T8 Tax Audit CZCL 1980
Material assembled to enable responses to be given in the tax audit and thus in anticipation of litigation. Privileged.
13. P-10 Pulp General — GLP/80 — Box GLP
As claimed this is material assembled for tax counsel. All privileged.
Box Marked ‘B’
1. Miscellaneous Documents loose at the front of the Box
(a) A request for legal advice. Privileged.
(b) A letter from Mr Clark to Mr Pearson in the Law Department of Crown Zellerbach Corporation. A communication to a third party on a matter which is not in itself privileged. No privilege.
(c) A legal opinion by Mr Clark to others within the company. Privileged.
2. 1-1 Income Tax Audit Fed Govt — GLP 1980 — Box GLP
This is all material much of which is communications to and from tax counsel which was assembled in connection with the responses to be made to Revenue Canada. Involves contemplated litigation. All privileged.
3. C-J Combines Investigation Act — GLP 1976
Correctly described in the outline. Privileged on the basis claimed therein.
4. C-3 Combines Investigation Act — GLP 1977
A report from counsel re a combines matter. Privileged.
5. C-11 Corp Counsel and Sec — GLP 1979
Correspondence with the law firm representing Bulldog relating to a settlement of that action. A communication with outsiders which is not privileged.
6. L2 Legal Secretaries Department 1980 — Box RGR
A memo from Mr Clark to the chairman of the compaNy giving legal advice. Privileged.
7. L-2 Legal Secretaries Department 1979 — Box RGR
A memo to the president giving legal advice. Privileged.
8, L-2 Legal Secs Dept 178 — Box RGR
A compilation of legal opinions and reports on litigation. All privileged.
9. Legal — Newsprint Price Lists and Combines Investigation Act L2-10 — Box GMC (I)
Correctly described in the outline. Privileged.
10. ConCel Inc. (B-10 Pulp — Correspondence L2-119R)
Correctly described in the outline. Privileged.
11. L2-81 Pulp Sales to Consolidated Fibres Credit Department — Box GMC (I)
The same document as Box A, No 1. Privileged.
12. Ontario Inter-provincial Income Allocation re CZCL and Richmond Paper Products L4-99R
Internal memoranda related to income tax audit. Privileged.
13. Research and Development Agreement Revenue Canada Income Tax Audit L4-98 Red
Material relating to the present issue with Revenue Canada all of which came into being while litigation was anticipated. Privileged.
14. Newsprint Investigation — Combines Investigation Act 27 September, 1976 — L2- 69
Correctly described in the outline. Privileged.
15. Legal Opinions Re Combines Investigation Act
Consists entirely of legal opinions and material related thereto. Privileged.
16. Norsk v Ocean Falls — Termination of Ocean Freight Contract — L1-151 Red
Confidential communications relating to the law suit arising out of termination of the Ocean Falls contract. All privileged.
17. Third Party Claim: Norsk Pacific v CZCL Trolleggan No 10 Voyage — L1-87
Confidential communications in another legal proceeding. Privileged.
18. C-21 Crown Zellerbach International — July-September, 1979 — Box BWB I
A memorandum prepared to provide information to outside counsel for the purpose of receiving an opinion. Privileged.
19. A8 Audit Committee, Directors/1978 BWB — Box BWB 1]
The three items are correctly described in the outline and are all privileged.
20. TGR 1980 General Counsel/Secs Department
This file contains 6 memoranda all written by Mr Clark but dealing with quite different matters.
(a) Legal advice with respect to directors’ status. Privileged.
(b) Providing information regarding areas of land which the company was considering leasing. No element of legal advice. Not privileged.
(c) A memo providing information re property taxes on various pieces of land. No element of legal advice. Not privileged.
(d) Memo containing an extract from the annual report of the combines investigation director. No element of legal advice. Not privileged.
(e) A memo providing information regarding the activities of a section of the department. No element of legal advice. Not privileged.
(f) A memo summarizing appeals lodged re assessments of property and equipment. No legal advice. Not privileged.
(g) A letter from Mr Thorsteinsson relating to the matters now in issue. Privileged.
21. TGR 1978 General Counsel/Secs Department
(a) A draft memorandum from Mr Clark to Mr Rust summarizing terms of pulp sale agreements. Largely factual but does contain elements of legal advice. Privileged.
(b) A memorandum from Mr Clark to Mr Rust re proposed pulp sales. Contains legal advice. Privileged.
(c) Draft memorandum from Mr Clark to Mr Rust re pulp agreements. Gives legal advice. Privileged.
(d) A memorandum from Mr Clark to Mr Rogers and others re litigation in progress against government of BC. Elements of legal advice. Privileged.
(e) Memorandum from Mr Clark to Mr Rust re a court decision in that matter. Privileged.
(f) A memorandum from Mr Clark to Mr Rust with a copy of a letter to another party giving legal advice of interest to the petitioner. The letterhead being provided because of that interest. A way of giving legal advice. Privileged.
(g) A letter from outside counsel giving legal advice on a shipping matter. Privileged.
22. TGR General Counsel/Sec Department 1979
(a) Memorandum re lands and properties which provides information and makes recommendations but has no element of legal advice. Not privileged.
(b) A memo from Mr Clark to an officer of the company with a proposed letter drafted by Mr Clark for the officer. Elements of legal advice. Both privileged.
(c) Opinion of outside counsel re Orchids Paper matter. Privileged.
(d) Draft memorandum re Orchids Paper matter which was then in litigation. Privileged.
(e) Draft letter of opinion re Orchids Paper matter. Privileged.
23. Bleach Kraft Pulp Contract — CZ Corp and Elk Falls Co Ltd — A 1-51
This is a large file including a number of memoranda which appear elsewhere in the files. It apparently was assembled in relation to the present issues as to tax liability and while litigation was in contemplation. Mr Thorsteinsson was involved in some parts of it. The whole of the file is privileged.
24. P9 Pulp and Paper Group — Box BWB III — 80-BWB
A letter to outside tax counsel providing information. Privileged.
25. T1 Tax Department and Taxes — Box BWB III — 80-BWB
As described in outline. Privileged.
26. T1 Tax Department and Taxes — Box BWB III 78-BWB
(a) A letter from outside counsel transmitting a letter from the lawyer for an opposite party and copies of court documents. No element of advice. Not privileged.
(b) Correctly described in outline. Seeking lawyer’s opinion. Privileged.
27. N1 Newsprint — GLP/80 — Miscellaneous Box
(a) A memorandum seeking lawyer’s advice. Privileged.
(b) A letter providing Mr Thorsteinsson with information and relating to contemplated litigation. Privileged.
(c) Privileged for the same reason as (b).
28. 01 Ocean Falls Corp CLP 76/77 — Box GLP
(a) A letter to lawyer for opposite party. Not privileged.
(b) A letter from the same lawyer. Not privileged.
(c) A letter to the same lawyer. Not privileged.
(d) A memorandum from Mr Clark to Mr Pearson giving advice. Privileged.
(e) Letter to lawyer for opposing party. Not privileged.
(f) A letter from the same lawyer. Not privileged.
(g) A copy of a letter to the same lawyer. Not privileged.
29. P-11 Pulp Contracts and Agreements — GLP/80 Box GLP
(a) A memorandum seeking legal advice. Privileged.
(b) A group of memoranda. This is a collection of memoranda and supporting information prepared at the suggestion of outside tax counsel and relating to the matters now in issue and prepared while litigation anticipated. All privileged.
30. C-3A GLP Corp Counsel and Sec 176 — Box GLP
(a) Opinions of patent attorneys. Privileged.
(b) A memorandum from Mr Clark to the Executive Group enclosing clippings — a form of providing legal advice. Privileged.
(c) A memorandum re patent law revisions. Essentially an opinion on law. Privileged.
31. P5 Pulp — General Box — RGR
Another copy of document 1 in Box A. Privileged.
32. Newsprint contracts — CZ Corp and Elk Falls Co Ltd A6-5
(a) A memorandum from Mr Gamble re pulp and newsprint contracts for review and comments. This is said in the outline to be a solicitor/client communication in the course of seeking legal advice. But it was directed to Messrs Beaton, Pearson, Cooper and Unsworth, as well as Mr Clark and appears to be seeking the comments of that group of officers (Executive Committee?) rather than the lawyer. Not privileged.
(b) A memorandum re market pulp sales. It is said in the outline to have been prepared for submission to outside tax counsel but there is no evidence to confirm that. Not privileged.
(c) A lawyer’s letter giving advice. Privileged.
(d) A letter from the company’s attorney in the US re form of notice. Privileged.
(e) Lawyer’s letter giving advice. Privileged.
(f) Lawyer’s letter giving advice. Privileged.
(g) Lawyer’s letter giving advice. Privileged.
(h) Lawyer’s letter giving advice. Privileged.
33. A3 Marketing BA Group, F Oxenbury, etc GLP/79 — Box GLP
All of these are memoranda seeking legal advice from Mr Clark. The entire file is privileged.
34. Proposed Pulp Sales Contract with CZ International Inc A1-210
(a) The original of the document in file 2 in Box A. (i) is another copy of that.
(b) to (1) are memoranda and excerpts from bulletins and statutes all of which constitute the giving of legal advice by Mr Clark to others within the company, (k) is a memorandum to Mr Clark with information to allow him to advise on contract revisions. The whole of the contents of file 34 are privileged.
Additional Documents Submitted in July, 1981 (listed in Exhibit B to Mr Clark’s Affidavit of July 22, 1981)
Note: The numbering conforms to that in the memorandum, Exhibit B, but with the addition of the letter “C”to distinguish these from the documents in Box A and Box B.
C-1. Attached to a piece of paper being the note “L-2 Legal Contracts (BAC)”
Correctly described in the memorandum. Privileged.
C-2. Attached to a piece of paper bearing a note “P10 Pulp Agreements — GLP 1977”
(a) A letter to General Counsel of Crown Zellerbach Corporation regarding an agreement between that corporation and the petitioner. Not privileged.
(b) A letter from Crown Zellerbach Corporation to the petitioner regarding a proposed amendment of the agreement between the two corporations. Not privileged.
(c) Privileged for the reasons claimed in the memorandum.
C-3. Attached to a piece of paper bearing a note ”P22(a) Pulp Sales General (BAC)”
Privileged for the reasons claimed in the memorandum.
C-4. File marked “C-49(a) Crown Zellerbach International — Contract Revision Study-
Copy of a memorandum which appears in file 23 in Box B and which was there held privileged because it was part of an assembly prepared for counsel. That ground of privilege does not extend to this copy. Not privileged.
C-5. File marked “PDM Pulp Contract”
Correctly described in the memorandum. It does not appear that this request was made of Mr Clark as legal adviser. Not privileged.
C-6. File marked "P9 Pulp General — GLP 1978”
(a) There is no evidence that this copy of the memorandum was sent to Mr Clark as legal adviser or for any reason which would give rise to privilege. Not privileged.
(b) Privileged for the reasons claimed in the memorandum.
C-7. File marked "P-10 Pulp Agreements — GLP”
(a) This memorandum is a synopsis of the terms of certain agreements. Not legal advice. Not privileged.
(b) A memorandum giving advice, essentially legal in nature, regarding proposed contractual arrangements. Privileged.
C-8. Red file labelled “Pulp Sales to Consolidated Fibres L2-87 Credit Dept Enquiry”
Privileged for the reasons set out in the memorandum.
C-9. File marked “US Tax Sensitive Transactions F2-25"
The documents are correctly described in the memorandum. It is clear that the communication was widely distributed within the petitioner corporation and that any element of legal advice in it was given to Crown Zellerbach International by one of its lawyers. Not privileged.
C-10. File labelled “Newsprint Contracts Crown Zellerbach Corporation and Elk Falls Co Ltd”
Correctly described in the memorandum. Privileged.
C-11. File entitled "Bleached Kraft Pulp Contract Crown Zellerbach Corporation and Elk Falls Co Ltd A1-51”
Correctly described in the memorandum. Privileged.