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

12 Apr

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

21 Mar

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

17 Feb

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

15 Feb

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).

Social media and the law – three nuggets and one blawger’s tale #ALC2013

1 Feb

I’m posting this from beautiful Edmonton, where I presented at the Alberta Law Conference social media session together with Diane McLeod-McKay (Alberta OIPC, Director, Alberta PIPA) and Doug Jasinski (Skunkworks Creative Group). Thank you to our Chair and warm host, uber-librarian Shaunna Mireau (Field Law). It was a nice balanced session, with a little marketing and communication, a little core privacy and a little “other,” all of which came together nicely to give helpful picture to our lawyer audience.

I was the “other.” My slides are below and deal with (1) the “licensed communicator” concept for governing business use of social media, (2) the social media civil production cases and (3) preservation of social media evidence. I also (as asked) spoke a little about my own blogging experience, an enjoyable first.

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

27 Dec

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

27 Dec

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).