This a quick post to pass on the news that John K. Rabeij will succeed Richard Braman as Executive Director of The Sedona Conference – the non-profit educational organization that has influenced Canadian e-discovery practice through its “Sedona Canada Principles.”

TSC’s press release says the following about Mr. Rabeig:

Mr. Rabiej graduated with a Bachelor of Arts degree from Loyola University (Chicago) in 1975. He earned his juris doctor degree from the University of Illinois College of Law in 1978 and a Master’s degree in International Relations from Georgetown University in 1983. Mr. Rabiej has published numerous chapters and articles in Moore’s Federal Practice (Third Edition) and Weinstein’s Federal Evidence treatises on issues about electronic discovery, asset forfeiture, and authentication of electronic evidence. His works on rules-related issues have been published in the Federal Litigation Guide, Practical Litigator, and Matthew Bender’s Forms. Mr. Rabiej writes bi-monthly expert commentaries for LEXIS-NEXIS on electronic discovery issues. He was elected to the American Law Institute in May 2004.

Ralph Losey is a core member of the American e-discovery community and has posted an announcement with some additional context here. Braman will continue his valued contribution to the advancement of e-discovery practice by serving as TSC’s Chairman of the Board and Co-Chair of its Executive Committee.

Incidentally, the Sedona Canada working group has recently issued a public commentary version of a paper on proportionality. It’s available here with instructions on how to provide feedback.

Happy new year!

The new year always invites change, and I’m happy to announce a positive change for this blog. After three and a half years of posting about the law of information on my own, I’ve invited four very good colleagues to join All About Information as co-authors.

Paul Broad, Frank Cesario, Natasha Monkman and George Vuicic are all Hicks Morley lawyers. I sought them out to participate because I know them as dedicated to a process of c0ntiual learning and knowledge sharing and because each will bring a different perspective to the topic. We’re all lawyers who act exclusively for management, but Paul is a knowledge management lawyer with a strong privacy practice, Frank is a litigator, Natasha is pension and benefits lawyer and George, while having a very broad and successful Canadian labour and employment practice, is also called in New York.

The subject matter of the blog will remain the same as always: All About Information is, as the title suggests, all about the legal rules that govern information. I suspect the style to change and hope that the content develops to be more rich as a result of our combined effort. Please bear with us as we as we find a rhythm and our new group voice. We look forward to the blogging year ahead!

Dan

Here are some links to recent news and commentary:

• Kids’ Access to Mom’s Email Account Waives Attorney-Client Privilege http://bit.ly/ifiBJj
• RT@idealawg The role of the chief compliance officer is currently a hot, if confused topic. What does she do? http://bit.ly/hjIj10
• Ethics and Stupidity http://bit.ly/f3Uxeq
• Preparing IT Departments for the Influx of Mobile Devices: http://bit.ly/e8xYuA via @addthis
• “@VBalasubramani: epic response to a lawyer letter from Cleveland Browns general counsel http://bit.ly/f1FSOu (@siouxsielaw …”’
• “@MortonsMusings: Violent acts not protected as expression and indirect limits on expression proper… http://bit.ly/g1CsgH”
• RT @DanielSolove Stunning data leak — Colorado database of 200,000 drug informants: http://tinyurl.com/24y2wvj
• RT @slaw_dot_ca Government access to stored communications – Warshak and Gomboc compared — Slaw http://bit.ly/eLNy86
• WikiLeaks and Receiving Stolen Property http://bit.ly/eL11a2
• RT @LawandLit Evolution of #Privacy Breach Litigation? – Concurring Opinions http://bit.ly/gOxJ0O
• Arbitrator: “[Terminated employee] not the first to do something stupid when using Facebook or Twitter” http://bit.ly/dNsRLL

I’ve made two information-related resolutions for 2011. One is to send fewer e-mails in favour of picking up the phone. The other is to make every e-mail a high quality e-mail. Regarding my personal habits, Seanna has convinced me to join her in going through Dr. Alejandro Junger’s detoxification program. I don’t really know what’s involved and am putting myself in her (and the doctor’s) hands, but feel I’m good and ready to clean out eight years of food court lunches along with all my other poisons. Better e-mailing and better eating might make for a pretty good year!

Until next year, I wish you all the best!

Dan

The Federal Court issued a PIPEDA judgment today in which it considered an organization’s duty to maintain accurate records of personal information and ordered damages under PIPEDA, both for the first time.

The judgment is about an inaccurate credit report given by a credit reporting agency to a bank. The agency wrongly associated negative credit information with the applicant based on the similarity between his identifiers and the identifiers of the individual to whom the negative information related. The applicant made some inquiries and diagnosed the error in early January 2008. It took the agency about 20 days to confirm the error, amend the applicant’s credit record and send a notice of correction to the bank. The applicant took issue with how forthright the agency was in dealing with the matter, both in its willingness to accept responsibility for the error (as opposed to blaming the collection agency that had supplied it with the negative information) and in notifying the bank.

The Court held that the credit reporting agency:

• failed to keep the applicant’s personal information “as accurate, complete and up-to-date as is necessary for the purposes for which it is to be used” as required by PIPEDA principle 4.6;
• failed to keep the applicant’s personal information “sufficiently accurate, complete, and up-to-date to minimize the possibility that inappropriate information may be used to make a decision about the individual” as required by PIPEDA principle 4.6.1; and
• failed to provide amended information as required by PIPEDA principle 4.9.5 because it simply advised the bank that the applicant’s credit record had been amended without providing a copy of the amended credit record or otherwise indicating that the amendment was in the applicant’s favor.

In upholding the accuracy complaint, the Court rejected the agency’s argument that its use of industry standard matching practices (which contemplate some margin of identification error) and its correction effort rendered it in compliance. The Court was very clear that neither compliance with industry standards nor complying with the duty to correct are valid defences to an accuracy complaint, but did suggest that liability for keeping inaccurate personal information is not absolute. It stated:

PIPEDA does not require that personal information be completely accurate, complete, and up- to-date; rather, it requires that personal information be as accurate, complete, and up-to-date “as is necessary for the purposes for which it is to be used.” Thus, it is the use that the information is put to that dictates the degree of accuracy, completeness, and currency the information must have.

It then suggested that the agency failed to take the reasonable precaution of conducting a manual check prior to issuing its credit report.

The Court awarded the applicant $5,000 in damages for humiliation suffered. While it recognized its recent statement in Randall v. Nubodys Fitness Centres that damages ought to be awarded in “egregious situations” only, it held that damages should be ordered to “uphold the general objects of PIPEDA and uphold the values it embodies,” including by deterring future breaches. In awarding damages in the circumstances, the Court noted the evidence of humiliation, the credit reporting agency’s profit motive and the credit reporting agency’s “failure to take prompt, reasonable steps to correct the record and reverse the situation it had caused.”

There are other aspects of the Court’s judgment of significance, including aspects related to the scope of the Federal Court’s jurisdiction under section 14 and its jurisdiction to make compliance orders under section 16(a).

Mirza Nammo v. Transunion of Canada Inc., 2010 FC 1284.

On December 13th, the Ontario Superior Court of Justice – Divisional Court held that employee personal e-mails stored on government e-mail servers are not subject to provincial FOI legislation.

The Court read “custody or control” purposely and narrowly. It held that providing access to personal e-mails does not advance the purpose of FOI legislation – advancing public participation in the democratic process.

The Court’s reasoning is very broad. The only atypical fact that it relied upon was that the e-mails in question were stored in a separate folder rather than intermingled with e-mails related to governmental affairs. The Court minimized the significant of this fact as follows:

That said, it does not follow that personal emails not filed in a separate folder (as was the case here) are necessarily subject to the operation of the Act. Much will depend on the individual circumstances of each case, but generally speaking, I would expect very few employee emails that are personal in nature and unrelated to government affairs to be subject to legislation merely because they were sent or received on the email server of an institution subject to the Act.

Importantly, the decision does not recognize a privacy right in personal e-mails or preclude institutions from auditing or inspecting personal e-mails. The Court makes relatively clear that its decision does not rest on employees’ privacy interest in the content of their e-mails.

Copy below circulated by Heenan Blaikie. Congratulations to Priscilla Platt and Brad Elberg, who acted for the City. As the Court (remarkably) says, its decision has implications for public sector employees that are “staggering.” Look for an appeal.

City of Ottawa v. Ontario (Information and Privacy Commissioner) (13 December 2010, Ont Div. Ct.).

On November 24th, the Ontario Superior Court of Justice dismissed an application for pre-action discovery because the requested order was not certain to identify the alleged tortfeasor.

The applicant wished to identify a young, female snowboarder who ran into him and injured his ankle. He sought an order allowing him to review records belonging to the ski hill at which the accident happened, including photos of female members between the ages of 12 and 20 years of age who may have been at the hill on the date of the accident.

Madam Justice Warkentin dismissed the application, primarily because the requested order was not likely to lead to the reliable identification of the alleged tortfeasor. She said:

In this motion, there is nothing in the evidence before me to suggest the snowboarder in question was a season ticket holder or a snowboard rental user on the date in question. The applicant is seeking disclosure of a large number of personal records in the hopes that he may be able to identify the same young female skier that he saw only briefly during a collision where he was injured. It was his contention that he has sufficient recollection of the young skier in question to be able to reasonably identify her from membership or other photographs retained by the ski resort, notwithstanding that the applicant admits the snowboarder who collided with him was wearing ski clothing, including goggles, (albeit she may have removed them after the collision), a toque and other winter clothing.

Warkentin J. held that the chance of identifying the correct individual was “remote,” far below the relatively high degree of certainty she said courts should demand. The applicant relied on gender, age and attendance at the hill on the date of the accident as identifiers. The degree to which these data points narrowed the breadth of the proposed inspection is not clear from the record, but Warkentin J. clearly perceived that the order would affect a fair sized group of individuals.

Warkentin J. also held that (1) the age of the individuals who would be affected by the order was a relevant, though not determining, factor weighing against disclosure and (2) that the enactment of PIPEDA is evidence of public policy favoring the confidentiality of customer information.

Douglas. v. Loch Lomond Ski Area, 2010 ONSC 6483 (CanLII).

Here are my nominations for the 2010 CLawBie awards.

I’m going to spend my nominations on law firm blogs this year. Many law firm blogs miss the mark because because they fail to capture the essence of a blog. Law firm blogs are getting better though, and I’d like to nominate three that are worthy of recognition:

1. Entertainment & Media Law Signal. This a blog published by Heenan Blaikie’s Entertainment Law Practice, and proves that even large firms can create a genuine legal blog. Editors Bob Tarantino and Paul Chodirker link to lots of timely and relevant content, are not beholden to any particular structure of post and even employ humour! Most significantly, however, they are very willing to give props to lawyers who are not from Heenan Blaikie. This reflects well on them and breaks new ground for Canadian law firm blogs.
2. Human Resources Legislative Update. Law firms don’t have to emulate independent legal blogs to blog well. Human Resources Legislative Update is a blog published by Hicks Morley (my own firm) that is as conservative as a law firm blog can be, but is excellent because of the way it addresses a relevant and very targeted niche. Human Resources Legislative Update covers legislative developments in human resources law that are likely to affect the firm’s clients. Coverage is timely and comprehensive. Posts are well written and easy to digest because Human Resources Legislative Update is written by knowledge management lawyers (Tierney Read Grieve and Pamela Hillen) who know how the legislative process works and can distill the significance of a legislative change.
3. Ontario Rules of Civil Procedure Blog. I like this FMC blog for the same reason I like the Hicks Morley blog. It provides current information on very relevant and niche subject matter – the interpretation of the 2010 landmark amendments to the Ontario Rules of Civil Procedure. Unfortunately, posting frequency has tailed off of late, and I hope editors Jeremy Millard and Tiffany Soucy can find the time to keep going in 2011 (perhaps with more descriptive headlines). They’ve put out a quality blog that is likely more widely appreciated than they know.

I’d also like to give thanks to my most regular reads, all of whom have given me significant thoughts to ponder this year. These include Antonin Pribetic, Garry Wise, Erik Magraken, Omar Ha-Redeye, Michael Fitzgibbon and David Fraser.