Ontario decision deals with scope of litigation privilege, keyword searches and other e-discovery issues

On March 25th, the Ontario Superior Court of Justice issued a decision in which it held that that communications sent and received in order to build a public relations strategy ancillary to ongoing litigation were not subject to litigation privilege. Master McLeod stated:

I am not however persuaded that strategy associated with public relations, media relations or lobbying ancillary to litigation would or should be protected. The notion of the adversarial advocate and the zone of privacy cannot be stretched so far as to protect the strategy of the party in the court of public opinion.

This is the most principled finding in a decision that also canvasses and provides helpful comment on a number of issues related to the production of e-mails. Master McLeod remarks, for example, that a search for documents containing keywords is a means of discovering relevant and privileged documents but does not “render the document automatically relevant” or “answer the question of privilege.”

Coincidentally, Craig Ball recently posted on the same issue in, “Are Documents Containing Agreed-Upon Keywords Responsive Per Se?” Ball urges counsel to address the responding party’s access to responsive documents expressly in the discovery planning process. He also raises the motivation a party may have to demand a full set of responsive documents:

We may be gravitating to a place where counsel’s countermanding a machine’s “objective” characterization of a document as responsive will be viewed with suspicion. Responding parties see electronic culling as just an extension of counsel’s judgment; but, requesting parties often see electronic culling as an objective arbiter of responsiveness. Face it: requesting parties believe that opponents hide documents.

If you follow e-discovery developments, both this case and the Ball post are worth a good read.

Kaymar Rehabilitation v Champlain CCAC, 2013 ONSC 1754 (CanLII).

Court orders safekeeping of medical records held by departed employee

On March 7th, the Ontario Superior Court of Justice issued an order to secure medical records held by a former employee of an addiction clinic.

The employee had copies of urinalysis reports stored on her personal e-mail account at the time of termination because she had used her personal e-mail account for work purposes. She allegedly used her continuing possession of the e-mails to extort the employer into offering reinstatement and later refused to return the e-mails, arguing they were evidence of the employer’s wrongdoing. (It is not clear from the decision what wrongdoing the employee alleges.)

The Court granted an ex parte order after applying the test for an Anton Piller. Notably, the order required the employee to turn control of her e-mail account to an independent supervising solicitor authorized to copy and retain the e-mails, delete the e-mails on the account and return control of the account to the employee. The Court authorized the employer to serve the order by e-mail.

Garber v Robinson, 2013 ONSC 1427 (CanLII).

Master McLeod sets out parameters of hard drive review

Last September Master McLeod of the Ontario Superior Court of Justice issued an e-discovery order that was just brought to my attention and that makes some points about the discovery of a hard drive.

The order involves an external hard drive that a departed employee (and defendant) admitted contained his former employer’s (and plaintiff’s) information and turned over to plaintiff counsel for “forensic review.” Plaintiff counsel did not use a forensic IT specialist to review the drive. It reviewed the drive itself and segregated a number of potentially privileged files. It also discovered over 400 zip files that contained backups of information from the defendant’s personal laptop.

Master McLeod held that the defendant should review the files that plaintiff counsel had segregated as potentially privileged. In doing so, he commented that there was an honest misunderstanding about the meaning of “forensic review” and that plaintiff counsel took adequate steps to protect itself from exposure to privileged communications. Nonetheless, according to Master McLeod “conducting the document review in house without specific agreement or disclosure was less than prudent.”

Master McLeod also held that the plaintiff could continue to review the 400 plus zip files through its forensic expert. He said:

In my view this kind of analysis is best conducted by an arm’s length expert for two reasons. The first is that the data ostensibly belongs to the opposing party and will contain irrelevant confidential information (as anticipated) and apparently privileged information (which does not appear to have been anticipated by the defendant at least). The second reason is that the personnel conducting the analysis may have to be witnesses at trial and that militates against the use of in house I.T. or paralegal staff.

Notably, Master McLeod rejected a defendant argument that the zip files should not be reviewed at all based on a statement in the Sedona Canada Principles that indicates recourse to backup files should not ordinarily be within the scope of production. He held that, In the circumstances, the backup files were a potentially critical source of evidence that the plaintiff was prepared to review. The plaintiff would bear the cost of the review subject to cost recovery at the end of the day.

Descartes v Trademerit, 2012 ONSC 5283.

Nova Scotia court orders hard drive review to disclose usage patterns

On February 8th, the Supreme Court of Nova Scotia ordered the forensic review of an injured plaintiff’s hard drive because it would likely contain evidence relevant to a claim that he could only work at a computer for two to three hours a day. Although the computer was used by others (perhaps through separate user profiles, though this is unclear on the record), the Court held that use by others went to the weight of the evidence, a matter to be assessed at trial. Notably, the order contemplates a search to be conducted by a third party under a protocol proposed by the defendant.

Hat tip to Barry Sookman.

Laushway v Messervey, 2013 NSSC 47 (CanLII).

Existence of unfound docs no reason to allow a hard drive inspection (Ontario)

On December 19th, Justice Morgan of the Ontario Superior Court of Justice made the following statement of principle in dismissing a request to inspect a party’s hard drive that followed the party’s service of a supplementary affidavit of documents:

Plaintiff’s counsel submits that computers do not err, and the fact that a document was overlooked the first time implies that the search was unredeemably deficient. However, computer storage and search systems, like traditional filing systems, are subject to human error. The Defendant’s obligation is to make every effort to produce what the Rules require it to produce, but there must be evidence stronger than a corrected error for a court to order that the Plaintiff actually take control of the search through the Defendant’s computer hard drive.

Justice Morgan also dismissed a request for an order requiring the provision of information about how the party’s electronic search was conducted. He commented that the Rules “do not require a party to explain how or where the relevant documents were found or the methodology of its search for those documents.”

Zenex Enterprises v Pioneer Balloon, 2012 ONSC 7243 (CanLII).

No disclosure of information from Facebook in Ontario case

On December 21, the Ontario Superior Court of Justice dismissed a motion for production of all content on the private portion of a plaintiff’s Facebook account.

The plaintiff alleges she sustained permanent impairment as a result of motor vehicle accident that lessened her ability to participate in recreational, social, household and employment activities and caused a loss of enjoyment of life. The evidence on the defendant’s motion for production indicated the plaintiff had 139 Facebook friends and had made postings on her (publicly-available) timeline stating that she was feeling better and that “Life is good!” Notably, in response to the motion the plaintiff filed evidence that described the content of the private portion of her Facebook account, attached pictures (under seal) and reconciled the images in the pictures (of her standing, sitting and leaning) with her claim.

Regional Senior Justice Heeney held that the photographs he reviewed were not relevant:

I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.

Justice Heeney made clear that he was not endorsing the withholding of any otherwise producible information based on a privacy claim, though it is clear that he had particular concerns about the invasive nature of the defendant’s production request. In particular, Justice Heeney suggested that a production request for an individual’s entire Facebook account is highly problematic:

Before the dawn of the internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, it is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff’s claim for non-pecuniary damages. The shocking intrusiveness of such a request is obvious. The defendants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so.

Stewart v Kempster, 2012 ONSC 7236 (CanLII).

Plaintiff left to lie in its e-mail mess

On November 15th, the Supreme Court of Nova Scotia dismissed a motion to amend a production order that caused a pension plan great difficulty given its committee members had used their work e-mail accounts to send and receive relevant communications.

The pension plan sued its investment advisors to recover investment losses. About a year ago the Court ordered it to conduct keyword searches involving 51 terms. This required the pension plan to search for e-mails sent and received by its committee members who held day jobs for the plan sponsor (a separate legal entity) and used their work e-mail accounts to send and receive relevant communications. Matters were made worse because the pension plan’s litigation counsel was actively engaged in matters adverse to the sponsor, which meant the sponsor was unwilling to let the pension plan review e-mails without first vetting them itself. The 51 terms produced too many responsive records for the sponsor, who objected to the pension plan. In response, the pension plan moved for relief. It argued that the 51 terms produced too many “false positives” and asked for an amendment.

The Court dismissed the motion. It held that an amendment to the order could only be justified based on “compelling reasons” given that the order was the product of argument, reasoning and a lengthy decision and because it would invite selective application of a narrower search (to the benefit of one party) than applied to all other data sources under the parties’ control. The Court held that the pension plan failed to meet this burden. It was unimpressed with the evidence adduced through counsel’s paralegal, who gave hearsay evidence about search quality analysis conducted by the pension plan’s litigation support company. The Court explained:

I have no direct evidence from CWL and am not satisfied that the evidence shows CWL to have the capability to reliably identify relevant documents subject to disclosure. I have little evidence upon which to assess the correctness of CWL’s assessment of what constituted a “false positive”. I am particularly concerned because the context in which the revised search was conducted intended to minimize the number of documents to be reviewed. I cannot say whether CWL sacrificed the quality of the search to meet the goal of reducing the quantity of captured documents.

The Court did not clearly rely on the committee members’ use of the sponsor’s e-mail system in dismissing the motion, but did comment that the pension plan’s situation was “of its own making.”

Halifax (Regional Municipality Pension Committee) v State Street Global Advisors Ltd., 2012 NSSC 399 (CanLII).

Nova Scotia court says parties should share search parameters

The Nova Scotia Supreme Court issued a notable e-discovery decision on August 2nd.

The Court dismissed a motion to compel further documentary production as premature because the discrepancy in production volume between the parties was insufficient proof that the party producing fewer documents had failed to meet its obligations. More importantly, however, the Court accepted the moving party’s argument that (in the absence of a discovery agreement) it was entitled to information about the other party’s search protocol before oral discovery. The Court described the argument as follows:

The basic position of the defendants is that the Civil Procedure Rules contemplate that the parties will make a good faith effort to try and agree on the criteria to be used in conducting searches for electronic information to be disclosed. In other words, each party should apply the same relevance analysis in reviewing their electronic records. Even in the absence of an agreement, the parties should be required to disclose the criteria which they used so that the other parties know the basis on which the affidavit of disclosure was prepared.

In many cases, discovery examinations include questions directed at identifying additional undisclosed documents to be produced. Counsel for the defendants does not believe that disclosure of the electronic search criteria should be left to the discovery process. He suggests that this would result in bifurcation with an initial discovery on the scope of disclosure followed by an adjournment todeal with newly identified records. It would then be necessary to have a second discovery on the substantive issues.

The Court also made some findings about the requirements for an “affidavit disclosing relevant electronic information” under the Nova Scotia Civil Procedure Rules.

Velsoft Training Materials Inc v Global Courseware Inc, 2012 NSSC 295 (CanLII).

Non-party privacy tips the balance in favour of Anton Piller

On November 23rd of last year the Alberta Court of Queen’s Bench issued an Anton Piller order based significantly on a concern for the privacy interest of customers whose information the plaintiff alleged had been stolen.

The plaintiff is a BMW dealership that was confronted with a regrettable breach of its sales and customer relationship management system when it failed to remove system privileges from a terminated manager. It alleged the manager gained unauthorized access to the system and downloaded the names, e-mail addresses and “other personal details” of about 5000 customers.

I won’t detail the record, but the Court noted that it contained gaps. It seemed to be swayed by the customer privacy interest at stake and stated that a public interest supported making the order:

I am satisfied that even if Beck is innocent of some or all of the allegations being made against him on an ex parte basis, Bavaria has a public interest and duty under the appropriate Privacy Act legislation, to do everything it can to preserve the integrity of information that appears to have gone missing or unaccounted from almost 5,000 of its customers that it had care and custody of, and that this Order is also in the public interest.

This statement does not make clear why the Court felt the preservation of evidence afforded by an Anton Piller would be privacy-protective. In some circumstances retrieving evidence of misuse might help non-parties mitigate, but perhaps this is really about allowing a plaintiff (and custodian) some assurance that lost personal information has been brought under control (without copies being stashed away). For another case in which an employer attempted to use non-party privacy in enjoining competitive conduct by a departed employee see here.

Bavaria Autohaus (1997) Ltd. v Beck, 2011 ABQB 727 (CanLII).