Author: Dan Michaluk

Hicks Morley’s Information and Privacy Post 2007 Year in Review

Hicks Morley recently published its “2007 Year in Review,” which is an indexed and edited compilation of much of the case law I’ve covered in this blog plus other significant cases from 2007. I feel somewhat unpatriotic about it, but co-editor Paul Broad and I selected the Vioxx privilege case as the most notable case of the year. Professor Rice’s reasoning on the factual inferences that ought reasonably to be drawn about the purpose of a communication based on how e-mail is communicated to and from internal legal counsel is significant, but we like Vioxx more for what it demonstrates about the challenge in managing business information today.

Here’s a snippet of our opening editorial:

Picture the records. Thirty thousand of them, all printed and stored in about 81 bankers boxes. They were not organized in chronological or any other logical order and contained numerous e-mail strings with duplicate communications, none of which were grouped. Merck actually had to review a set of records that was over 60 times this size to even claim privilege over these records, but even in litigation of such massive scale, Merck no doubt economized by doing some form of automated search on internal and external counsel names. This wasn’t good enough in the end, because when the plaintiffs challenged Merck’s privilege claims the litigants and the court were drawn into an examination of each and every line in every one of the 30,000 disputed records – first by way of a summary process and then by way of a detailed examination of a 2600 record sample. Since Merck’s novel theory that would have enabled it to avoid the burden of a record-by-record justification was rejected – one that relied on pervasive regulation of the drug industry – many of its privilege claims were rejected.

Although the Vioxx case actually involved physical records, it highlights the challenge associated with e-discovery that is the dominant concern of our civil justice system today. How can businesses afford to meet their production requirements in light of their massive and unorganized stores of electronic records? Yet civil litigators and law clerks might empathize with information and privacy coordinators. Every coordinator we know has ploughed through stacks of printed e-mail chains to assess whether any exemptions from an access requirement (all with their nuances and ambiguities) should be claimed.

All of us are working on our part of this challenge. We’re working on the root cause by managing information better, retaining it for shorter but legally compliant time periods and by providing guidance to employees on responsible record creation. (Is that really what you want to be putting in an e-mail?) We’re working on good preservation, search, retrieval, review and production processes – those that are efficient and defensible, and often rely on technology. And finally, we’re working on the law of production and access to information itself.

You can download a copy of the 2007 Year in Review here.

Information Roundup – January 13, 2008

Today was a surf day in Ontario, and we had a social weekend with lots of visits.  Here’s what I read that was interesting this week.

  • National Association of Attorneys General, Task Force on School Safety and Campus Safety.  I’ve been reporting on most of the policy reports that have come out after the Virginia Tech incident, but missed this September 2007 report, which echoes the messages on the importance of information flows to pre-emergency threat assessment as those published in other endorsed elsewhere.
  • Randy Pepper and Randall Stephenson, Young v. Bella:  Concurrent Liability in Defamation and Negligence; Freedom of Expression Values and the Checking Power of the Press.  Long title – thorough and insightful commentary.  Speaks to the 2006 Supreme Court of Canada decision in Young v. Bella from a media law perspective and discusses the public interest responsible journalism defence first recognized in the recent Ontario Court of Appeal case Cusson v. Quan.  My main interest in Young v. Bella is that it creates a form of tort protection for breach of privacy and is speaks to the risk of unbound threat reporting.  In the August 2007 supplement of The Advocates Quarterly.

I’ve also read some interesting texts lately.  I got Philip Slayton’s Lawyers Gone Bad for Christmas and picked up Daniel Solove’s The Future of Reputation on the internet identity issue myself over the holidays.  The first will be an interesting read for Canadian lawyers and I’d recommend the latter for readers of this blog.  I’ve been most enthralled with the 9/11 Commission Report.  I’ve been meaning to read this acclaimed report for a while, but finally downloaded the 20 hour audiobook from Audible.com and have been driving Seanna nuts with it. If you’re in law enforcement, security, audit or even operations I think you’ll find it similarly fascinating.

Case Report – Sask QB rejects spoliation claim

On November 23rd, the Saskatchewan Court of Queen’s Bench held there is no independent tort of spoliation in dismissing a claim against a doctor for destroying patient charts and other hospital records.

The Court dismissed the claim because there was no duty to preserve the records at the time they were destroyed, which was before litigation was filed, apparently pursuant to a routine records management process and in accordance with a compliant records retention period. The Court did not comment on whether litigation was reasonably foreseeable at the time the records were destroyed.

In the alternative, the Court cited the British Columbia Court of Appeal’s decision in Endean v. Canadian Red Cross Society for the proposition that spoliation is only a rule of evidence, not an independent tort. It did not deal with the Ontario Court of Appeal’s decision in Spasic (Estate) v. Imperial Tobacco Ltd., where the Court held it was not plain and obvious that a pleading based on the tort of spoliation discloses no reasonable cause of action and therefore that claims based on the tort should be allowed to proceed to trial.

Galenzoski v. Awad, 2007 SKQB 436 (CanLII).

More on Qualcomm v. Broadcom Sanctions Case

As I’ve said, there will be lots of commentary about the Qualcomm v. Broadcom case from Americans, and I’d rather leave it to them than wade in myself. So this is just a teaser for those who are unfamiliar with the issue. I’ve also provided some links below if I’ve managed to pique your interest.

The order, released on Monday by a California court, brought an end to an intense dispute about failure to produce relevant e-mails that began this January 26th when a witness for Qualcomm in a patent dispute admitted that she had received e-mails from a mailing list (called the “avc_ce” list) which was evidence of Qualcomm’s participation in a standards setting body (called “JVT,” on the “H.2264” standard) before a specific point in time. In the Court’s words, Qualcomm’s assertion that it had not participated in the JVT was “vital” to its success in defeating Broadcom’s waiver argument, and two days after the admission was made a jury returned an advisory verdict that claimed two of Qualcomm’s patents were unenforceable because of waiver.

After the trial Broadcom asked Qualcomm to conduct additional searches to determine the scope of its discovery violation, and eventually Qualcomm agreed to search the current and archived e-mails of its five witnesses based on the terms “avc_ce,” “JVT,” and “H.2264.” Then, in April, Qualcomm’s general counsel and the lead counsel at trial wrote the trial judge to apologize for failing to produce relevant documents.

Qualcomm eventually located over 46,000 responsive and undisclosed records by searching the e-mail archives of 21 employees. Then…

  • …Broadcom filed a motion for sanctions
  • …Qualcomm’s lawyers were ordered to show cause why they should not be sanctioned
  • …Qualcomm came into conflict with its lawyers about who was responsible and refused to waive its solicitor-client privilege for use by the lawyers in the show cause
  • …which all led to the recent order.

This week Magistrate Judge Barbara L. Major held that both Qualcomm and six of its attorneys committed misconduct, focusing on the failure to conduct an e-mail search on obvious custodians on obvious terms on an issue that was obviously central to the case. She ordered Qualcomm to pay over $8.5 million for Broadcom’s attorneys’ fees and other litigation costs (less costs ordered to be paid earlier), referred six lawyers on Qualcomm’s litigation team to the State Bar of California for investigation and ordered these lawyers and some of Qualcomm’s in-house lawyers to participate in a program to craft a model case management protcol to prevent similar events in the future. It appears this protocol – deemed the “Case Review and Enforcement of Discovery Obligations” or “CREDO” protocol – will become a public source of guidance. The Court said:

While no one can undo the misconduct in this case, this process, hopefully, will establish a baseline for other cases. Perhaps it also will establish a turning point in what the Court perceives as a decline in and deterioration of civility, professionalism and ethical conduct in the litigation arena. To the extent it does so, everyone benefits – Broadcom, Qualcomm, and all attorneys who engage in, and judges who preside over, complex litigation. If nothing else, it will provide a road map to assist counsel and corporate clients in complying with their ethical and discovery obligations and conducting the requisite “reasonable inquiry.”

Here is a copy of the order and here are some links to the early comments and articles:

Information Roundup – January 6, 2008

Back to work and excited about a fresh year ahead. On a personal note, Hugo’s eight months old and addicted to pulling himself to a standing position, and I was very pleased to manage a two hour paddle today on Lake O with five degree temps., not a breath of wind and nobody in sight. Here’s what I’ve been reading lately.

  • Randall Stross, How to Lose Your Job on Your Own Time. An article on internet identities and employment duties. (New York Times)
  • Rob Robinson, Compliance 2008, Do You Know What Your Employees are Doing? Outlines new web based software applications that may allow employees to perpetrate informational mischief. (Information Governance Engagement Area)
  • Conrad Jacoby, Discovery of Employee-Owned Computer Equipment. If you’re a regular reader of this blog, you may understand that the storage of work documents on employee home computers is my favorite Bugbear. This article discusses another reason for employers to clamp down – risk and cost reduction in e-discovery. (Internet Business Law Services)
  • Craig Ball, Ask and Answer the Right Questions in EDD. Craig Ball is another of my favorite commentators. Here, he lists 50 questions to consider at the outset of litigation and in meet and confer meetings. (Law.com)

I pick up a significant number of my regular reads from Rob Robinson’s Information Governance Engagement Area. Please check him out if you haven’t done so yet.

Case Report – Significant case on waiver of informer privilege proceeds

In a case on a narrow but novel point of law, Nordheimer J. of the Ontario Superior Court of Justice held that a confidential informant should be given notice of a motion to determine the scope or validity of a purported limited waiver of privilege.

The defendants were police officers who were accused, in part, of mistreating one or more individuals who worked as their confidential informants. One such informant agreed to a limited waiver of privilege to testify in support of the prosecution – i.e., he agreed to testify against the accused while maintaining the privilege as it applied to his other “work” with the police. The defendants argued that there can be no limited waiver of privilege as a matter of law and also argued that limited waiver would cause an unfairness in the proceeding.

The Court rejected the Crown’s argument that the informant had no interest that justified giving him notice:

That submission seems to me to fail to take into account the special position that the CI has in this proceeding. The CI was allegedly mistreated by one or more of the accused officers. He or she may very much wish to come to court and give evidence regarding that experience but, at the same time, not wish to jeopardize their status as a confidential informant more than is absolutely necessary to accomplish that goal. The CI would then have a very direct interest in the determination of whether a confidential informant can give a limited waiver of the privilege.

Nordheimer J. also held that the accused police officers have no standing to argue that the Crown had breached the informant’s privilege (in an attempt to stop him from testifying). While recognizing that a police officer has a duty to protect an informant’s identity, he held that the privilege belongs to the informant and the Crown.

R. v. Schertzer, 2007 CanLII 56497 (ON S.C.).

Canadian Law Blog Awards

I was very happy to learn that All About Information has been recognized as a runner up Best New Law Blog in the The Canadian Law Blog Awards – the “CLawBies” – won this year by one of my favorites, Osgoode Hall’s The Court. I consider myself a latecomer to legal blogging but have felt warmly welcomed into the community of creative and insightful Canadian bloggers. It’s been an entirely rewarding experience so far and I look forward to my first full calendar year of blogging in 2008.

Thank you to Steve Matthews for conceiving of and publishing the awards. Steve is the founder of Stem, authors the Law Firm Web Strategy Blog and the Vancouver Law Librarian Blog and contributes frequently to Slaw.

Case Report – Arbitrator says thorough probing is a prerequisite to surveillance

On November 27th, Manitoba labour arbitrator A. B. Graham excluded video surveillance evidence that showed an employee who was on light duties playing sponge hockey, in part, because the company ought to have been more direct in questioning the employee about his off duty conduct.

When the employee was confronted about playing sponge hockey, he did not lie but his answers were evasive. As a result, the company hired a private investigator to conduct video surveillance. Although the arbitrator excluded the video surveillance evidence based on a finding that the company should have asked the employee pointed questions first, he also held that the employee breached a duty to cooperate in the accommodation process by being more forthright about playing hockey and whether it was consistent with his medical restrictions.

Re Praxair and General Teamsters Local Union 979, [2007] M.G.A.D. No. 37 (Graham).

Case Report – Court says casual drug user not protected under human rights legislation

Yesterday the Alberta Court of Appeal issued its much-anticipated Chiasson v. Kellogg Brown & Root award, and in doing so, found that a casual drug user who was terminated after failing a pre-employment drug test was not subjected to discriminatory treatment under Alberta human rights legislation.

The key issue addressed by the Court of Appeal is whether zero tolerance drug testing policies are de facto discriminatory because they rest on a presumed assumption that casual drug users are at greater risk being impaired at work, in turn, because they are likely to fall into a “cycle of abuse.” This issue – let’s call it the perceived disability theory of casual drug user protection issue – was raised but not clearly determined in the Ontario Court of Appeal’s leading Entrop decision. It is critical in Canadian drug testing law because it determines the scope of legal protection against “unnecessary” drug tests. Ironically, Alberta is one of three provinces that have passed broadly-applicable regimes for protecting employee privacy rights. In fact, a drug testing complaint in which Kellogg Brown & Root is a respondent is now proceeding before of Alberta’s Information and Privacy Commissioner. In other jurisdictions, including Ontario, casual users who are given offers of hire conditional on testing clean have no clear avenue of redress should they feel their privacy rights have been violated.

The Court of Appeal held that the Alberta Court of Queen’s Bench had erred in finding that the complainant was treated as if he was drug dependent and likely to report to work impaired. It rejected the idea that a zero tolerance policy necessarily targets those who are at risk of becoming addicted and held that all the Kellogg Brown & Root policy does is protect against the lingering deleterious effects of cannabis use (a point apparently proven in evidence). The Court of Appeal said:

Chiasson testified that what he did on his own time was his business. He did not at any time suggest that he would cease his recreational use of drugs while employed by KBR. As we have already stated the evidence established that effects of cannabis use lingers for days particularly given that the concentration of active ingredients is now many times higher than it was in the past. Given these concerns the policy’s effects are not misdirected in their application to Chiasson.

We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely. This is a legitimate presumption. Its goal is laudable since carnage on the highways is a leading, but often ignored, cause of death nearing epidemic proportions. Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.

On this view, whether a drug and alcohol policy discriminates against casual users is a question of fact. This is consistent with the employer-favoured reading of Entrop, in which an Imperial Oil policy was that was found to discriminate against all drug users included langauge stating a belief in the “cycle of abuse” to which all drug users subject themselves. The Alberta Court of Appeal suggested that the perceived disability finding in Entrop was simply based on this language.

Chiasson v. Kellogg Brown & Root, 2007 ABCA 426.