Category: E-Discovery

Court Directs Employer to Give Former Employee Access to E-Mails for Privilege Review

On June 29th, Justice Moir of the Supreme Court of Nova Scotia directed a means by which parties to a wrongful dismissal action could deal with privileged communications sent and received by the plaintiff on his former employers’ work system. He directed a review by the plaintiff and his counsel, either at the defendant counsel’s office or elsewhere with an undertaking by plaintiff’s counsel not to make copies.

Justice Moir’s order also includes a thorough discussion about the discovery of facts obtained by a witness in a communication that is subject to litigation privilege.

Hat tip to Peg Duncan!

Saturley v. CIBC World Markets Inc., 2011 NSSC 310.

IPC/Ontario Continues to Show Pragmatism in Dealing with e-FOI Issues

The Information and Privacy Commissioner/Ontario has thus far demonstrated a good deal of pragmatism in exercising its power to review the quality of FIPPA and MFIPPA institutions’ e-mail searches. On June 30th, for example, it issued an order in which a requester claimed that an institution ought to have retained an independent IT expert to search and retrieve responsive e-mails, including “erased e-mails.” Despite the requester’s perception of conflict, IPC Adjudicator Morrow upheld the institution’s search as “coherent, systematic and responsible” in the circumstances.

This demonstrates that the IPC will defer to a reasonable search process and, absent special circumstances, is not likely to order the use of an external “e-discovery vendor.” Note that the IPC has also endorsed the choice to use vendors, a choice which allows institutions to pass through 100% of the reasonable costs of search and retrieval (which is not the case for internal searches). For an example of a case in which the use of an external IT vendor led to a valid yet very high yet reasonable fee estimate see Order MO-2154 .

See also Strong deference to search process demonstrated in “e-FOI” case.

IPC Order MO-2634, 2011 CanLII 43653 (ON IPC).

Master McLeod Reminds Parties to Look Way Ahead in Planning for Production

“Even at the pleading stage parties should have an eye on what issues will be raised by the litigation and therefore what will be the scope of production and discovery.”

This statement in a June 24th judgement by Master McLeod seems so trite, but is a worthy reminder given production can be so challenging that it seems like an end in itself and given the new mandate in Ontario that demands parties collaborate to achieve a production process “that meets the needs of the litigation,” no more and no less. Master McLeod imposed a modest costs sanction on a party for failing to work to narrow its production, including by producing the most obviously relevant records first. In doing so, he stressed the need to draw a link from the start between pleading, production and proof:

A party might be forgiven for not anticipating the need for documents made relevant by the other party’s pleading but there is far less excuse for not anticipating the documents required because of the party’s own pleading.

Secondly, related to the above, I am driven to the inference that there is no readily identifiable subset of documents which Allen Vanguard used to reach the conclusion there was misrepresentation and fraud.

Master McLeod ordered the producing party to pay $7,000 for breaching production obligations and failing to meet the times set out in court orders. He also noted, “The question of recovery of costs imposed by ultimately unnecessary production and discovery is specifically reserved to the trial judge.”

Hat tip to Peg Duncan!

L’Abbé v. Allen-Vanguard, 2011 ONSC 4000 (CanLII).

Employer Denied Order to Have Telco Produce Text Messages

On May 18th, the Ontario Superior Court of Justice dismissed an employer’s application for an order to compel a telephone company to produce text messages in aide of an internal investigation.

The employer, a social services agency, was investigating an allegation that a caseworker had an inappropriate sexual relationship with a client. The client admitted the relationship and the caseworker did not. The client said he no longer had text messages between he and the caseworker that would prove the allegation but consented to their release from the TBay Tel. The caseworker and her union refused to consent.

Rather than discipline or discharge the caseworker and seek a production order through the grievance arbitration process as necessary to defend a grievance, the employer deferred the completion of its investigation and sought a production order in court. It argued this was in the best interest of “all concerned,” likely a sign that it did not want to rest its discipline case too heavily on its client.

Justice Fregeau denied the order, primarily because it was not necessary. He said:

CLFFD has some evidence that J.T. violated their employment policy. They are in a position to discipline her for her conduct should they choose to do so. Their expressed position during the hearing of this Application is that for the interests of all concerned, they do not want to do so without “full information” or the “best evidence” available. It would certainly be advantageous or beneficial for CLFFD to have the information sought, but I do not find that they require it to proceed with the discipline of J.T.

While a Norwich order is a discretionary, flexible and evolving remedy, it is also an intrusive and extraordinary remedy that must be exercised with caution. I do not feel that it is appropriate to grant Norwich relief on all the facts and circumstances of this case.

Notably, the caseworker’s union opposed the requested order as being beyond the Court’s jurisdiction because the essential nature of the dispute arose out of the collective agreement between the caseworker’s union and the employer (i.e., because of the Weber principle of exclusive arbitral jurisdiction). The Court did not decide this issue.

This case should be considered by employers considering a Norwich order as an aide to an internal investigation. They should also beware that many (if not most) telephone companies do not log text messages.

Community Living v. TBay Tel et al., 2011 ONSC 2734 (CanLII).

Question of Remedy for Privilege Breach Back to Securities Commission in Knowledge House Affair

On Thursday, the Nova Scotia Court of Appeal issued a judgement about the Knowledge House affair, which has become as notable for the handling of an e-mail server containing solicitor-client communications as for the securities law issues at its heart.

In 2005, Justice Scanlan issued a scathing judgement in which he rejected an argument that certain individuals had waived privilege by sending communications over a company-owned server. In the result, he ordered removal of counsel who had seized the server and reviewed e-mails in prosecuting a civil claim on behalf of National Bank Financial Limited.

The Nova Scotia Securities Commission obtained privileged communications from NBFL and allegedly reviewed them in aide of its investigation. The Court of Appeal dealt with the affected persons’ quest for a remedy against the Commission in 2006. Justice Cromwell (as he then was) held that the affected persons’ application for certiorari was premature, but said the Commission should take “serious and immediate steps” to do right. The Commission did not respond to the Court’s suggestion by initiating proceedings to resolve the privilege issue. Instead, it issued formal allegations. The affected persons then moved before the Commission for a remedy. In June 2010, after numerous intervening proceedings, the Commission held that the privilege breach issue should not be bifucated and dealt with in advance of the merits of the Commission’s allegations.

Thursday’s decision is strictly procedural. Though it recognized that the hanging investigation and privilege question has been “stressful and costly” for the affected persons, the Court held that the delay in hearing the request to remedy the privilege breach was understandable and that the request for a remedy could be dealt with by way of a voire dire at the commencement of the hearing of the Commission’s allegations. It upheld the Commission’s decision.

Wadden v. Nova Scotia (Attorney General), 2011 NSCA 55.

IMAPS 2011 – The Sedona Canada Panel on Privacy and E-Discovery

Alex Cameron and I presented on e-discovery and privacy today at “IMAPS 2011” on behalf of the Sedona Canada working group. The Information Management Access Privacy Symposium is a fantastic annual event hosted by the Office of the Chief Information and Privacy Officer of Ontario. It was an honor to present.

Alex and I were one talking head short of an honest “panel,” but nonetheless had some good back-and-forth in delivering a presentation that is meant to provide a general overview of the privacy and e-discovery topic, with a focus on law and practice applicable to the Ontario public sector. Slides below.

Court Grants Ex Parte Order to Preserve Facebook

On February 4th, the New Brunswick Court of Queen’s Bench issued an ex parte order that required the plaintiff in a motor vehicle action to print and otherwise preserve the contents of her Facebook. Significantly, the order required the plaintiff’s own solicitor to appoint an agent to initiate and supervise the preservation process before speaking with his client.

The Court held that there was reason to believe the plaintiff had not produced evidence from her Facebook that would meet the “semblance of relevance” test for production. The plaintiff claimed that she could not travel by motor vehicle for more than one hour without discomfort, suffered headaches four to five days per week and could not carry groceries or any object that weighs more than five to ten pounds. However, the public part of her Facebook contained a number of pictures of her riding a “zip line” and there was (untested) evidence that these photographs were taken after the accident that gave rise to her claim. For example, the plaintiff publicly posted a photo in an album entitled “USVI 2010,” which contained a picture of her lying on a beach with “St. John USVI 2010” scrolled in the sand.

The Court did not apply the test for an Anton Piller order, but did question whether it was proper to grant ex parte relief. In resolving this question, it relied on the following evidence about the difficulty in determining whether Facebook data has been deleted.

Most importantly to the ex parte nature of the Motion, Mr. McNulty deposes that the creator of a Webpage on Facebook can add or delete to and from the site without leaving an electronic trail that can be followed by anyone seeking to data mine what may have been posted on that personal site over time and subsequently removed. Thus a forensic reconstruction of “dumped” data that might ordinarily be undertaken with respect to a computer hard drive is not an available option unless access to the relevant social network computers located elsewhere in the world was feasible and some data trail was able to be followed by an expert in the field of computer data retrieval or reconstruction at that site.

Notably, this evidence is about the consequences of deletion rather than the likelihood that the plaintiff would actually delete once put on notice. In fact, the Court judged the plaintiff’s disposition positively, suggesting she likely failed to produce the contents of her Facebook page out of mere ignorance.

The Court also recognized that an order requiring the plaintiff’s lawyer to help ensure the pages were properly preserved could do serious harm to the solicitor-client relationship, but felt that an ex parte preservation procedure was warranted and felt that it did not have the power to order a search by a neutral. As a kind of compromise, the Court ordered the plaintiff’s lawyer to appoint an agent to schedule a meeting with the plaintiff, advise her of the order, observe the printing and downloading of content and obtain and seal copies of the same for delivery to the plaintiff’s lawyer. The most troubling part of the order is that it bound the plaintiff’s lawyer to initiate this process without advising his client.

Hat tip to @pegduncan and @jfderico for pointing to this case.

Sparks v. Dubé, 2011 NBQB 40 (CanLII).

The Special Case of E-Mail (as Electronic Evidence)

I attended and presented at Day 1 of  the Osgoode Short Course in Obtaining, Producing and Presenting Electronic Evidence.

Thank you to Chuck Rothman of Wortzman Nickle for fielding my question about preserving web based communications. He suggested that Adobe Acrobat does a good job of producing a reasonably true copy of web page renderings, but should be used in conjunction with good evidence handling practices – e.g., keeping a log of steps, hashing the file produced and so on. Chuck also mentioned Facebook’s new feature that allows users to download profiles as worth thinking about when dealing with Facebook preservation issues.

I presented with John Gregory on “The Special Case of Email.” John is a true authority on electronic evidence, and I’ve been lucky to do this presentation with him a few times now. Our slides are below.

For some of John’s materials on electronic evidence, check out his web page here. We also noted Stephen Mason’s excellent website as a resource on electronic evidence. It is linked here.