Express Confidentiality Order Okay Protection for Customer Personal Information

On March 11th, the British Columbia Supreme Court ordered two directors of a plaintiff corporation to sign a confidentiality agreement as a means of protecting customer information. The defendant had proposed a more costly masking procedure.

The dispute was about an online retail business. The plaintiff claimed damages for failure to account for profits and for the return of two customer databases. The databases themselves were themselves relevant to either one or both claims. The defendant, in custody of the databases, proposed a masking procedure to be paid for by the plaintiff to protect against the disclosure of customer personal information, including customer addresses, e-mail addresses and credit card numbers.

Armstrong J. held that privacy concerns of non-parties should be addressed in determining the scope of documentary discovery, but stressed the court’s discretion and the presumed efficacy of the implied undertaking. In the circumstances, he held that a masking order was not warranted.

Animal Welfare International Inc. v. WS International Media Ltd., 2011 BCSC 299.

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.

Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties?(2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v Collins Barrow Toronto LLP, 2010 ONSC 598.

Party complains about receiving confidential information of non-parties. What next?

On January 24th, the Ontario Superior Court of Justice held that a plaintiff did not breach the deemed undertaking rule by complaining to a professional body (the Institute of Chartered Accountants of Ontario) that the defendants had produced documents containing their former clients’ confidential information.

Though the Court doubted that the plaintiff’s motives were pure, it held that he did not breach the deemed undertaking rule because his use of the production was done with the affected clients’ consent. The Court stressed that it was not deciding whether the defendants’ production was proper, but also said that a privacy-related complaint about producing documents pursuant to the Rules is “remarkable on its face.”

Two questions: (1) Is the deemed undertaking finding consistent with case law that recognizes that the undertaking gives rise to a duty owed to the court for the benefit of the parties? (2) Were the clients’ identities relevant, or could identifying information have been redacted without causing an improper production?

Martenfeld v. Collins Barrow Toronto LLP, 2011 ONSC 441 (CanLII).

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Judge distinguishes between true whistleblowers and partisan pretenders in ordering disclosure of confidential source

We’ve published here before about former Minister of Parliament Blair Wilson’s defamation lawsuit, part of which rests on an allegation that former British Columbia politician Judi Tyabji distributed an anonymous and defamatory letter.

On December 31st, Mr. Justice Williamson of the British Columbia Supreme Court ordered Elaine O’Connor, a reporter to whom the letter was provided under a condition of confidence, to disclose her source. His decision turns heavily on the characterization of the relationship between the confidential source alleged to be Tyabji and O’Connor. His Honour says:

I am satisfied that if the source is an arm’s length person disclosing information to a member of the media out a sense of civic responsibility grounded in a desire to foster accountability and responsibility in Members of Parliament, the public interest in protecting the identity of such a source outweighs the public interest in ensuring the proper administration of justice. But I also am satisfied that if the source is a participant in a scheme to favour the interests of one side in an acrimonious family dispute, or is a participant in a politically motivated scheme to defame and discredit an elected politician, then the public interest in fostering the proper administration of justice outweighs the public interest in protecting a journalist’s anonymous source.

Mr. Justice Williamson said that he was unable to find which of the two categories into which the anonymous source alleged to be Tyabji fell, and therefore held that O’Connor had failed to meet her burden of establishing the privilege she claimed.

This puts journalists in a particular dilemma given the evidence available to prove a source’s motive will always be limited if anonymity is to be maintained. The Globe and others report that the decision will be appealed. It seems like one that may have some legs.

Lougheed v. Wilson, 2010 BCSC 1871.