On August 31, the Alberta Court of Queen’s Bench declared that the plaintiff in a departing employee case was entitled to enforce a default order that allowed it direct access to a number of hard drives it had seized earlier in executing an Anton Piller order.
The plaintiff was granted an Anton Piller order at the outset of litigation. It seized hard drives but did not inspect them.
As the litigation proceeded, a case management judge ordered the defendants to serve and file an affidavit of records by a certain date, failing which the plaintiffs would have direct access to the hard drives (subject to confidentiality terms to be agreed upon or ordered). The parties subsequently consented to a joint confidentiality order.
The Court held that the defendants did not provide an adequate affidavit of records because they did not disclose a number of records related to their involvement in a consortium that had bid successfully for a contract formerly held by the plaintiff and did not disclose all relevant e-mails and deleted files. It also held that the defendants should have produced the passwords, systems files and software necessary to access files in their native format and should have processed the electronic records for export into a litigation support software program.
The Court also rejected the defendants’ justifications. It held that the records pertaining to the consortium would be adequately protected by the implied undertaking rule and the joint confidentiality order. It also held that the defendants had not shown that electronic production (as ordered) would be unduly burdensome. On this point, the Court said:
The unusually high level of disclosure imposed in this case is justified by: the underlying fact that the defendants were employees of the plaintiff when they began working in competition with the plaintiff, the judicial determination that this was an appropriate case in which to issue an Anton Piller order, the size of the claim, which exceeds $50 million, and the great IT expertise of the parties which presupposes that at least some of the work required to provide the required level of disclosure can be done in-house.
Spar Aerospace Limited v. Aerowerks Engineering Inc., 2007 ABQB 543 (CanLII).
All About Information 
Three things concern me about this decision:
– the defendants had applied to have the AP order set aside – not yet heard
– privacy. A better remedy would have been to have a neutral third party work with the forensic team to extract and review the relevant information. In this case, personal information is being handed directly to the opponents. Given that people use computers to access bank records, manage their investment portfolios, and browse websites of personal interest, it is not the same as handing over the office file cabinet.
– the idea that two high tech firms have forensic IT experience is not well founded. Forensic IT and related electronic discovery requirements for preservation require training and experience not normally associated with aeronautical engineering software