Second Call for November 19th Civil Procedure and Privacy Dinner

Big lack of blogging lately. It might take me another week of head-down work before I get time for extra-curricular reading, but we’ll see.

This is a second reminder about the OBA privacy and litigation section dinner on civil procedure and privacy. It’s on November 19th from 5:30 pm (cocktails) to about 8:00 pm. Liam McAlear and I will co-chair a panel discussion between Catherine Beagan Flood, Matin Felsky, Alex Cameron and members of our audience.

We have a prep meeting coming up (also over cocktails), so if you have any questions you want to put to the panelists please feel free to e-mail me or, if you’re not shy, comment below.

Here is the promo:

What’s all the hush-hush about? Privacy and Civil Procedure: Current Issues and Cases you need to know

Trends in communication and information management are giving rise to new issues in the litigation of civil claims. When should a court make an order to reveal the identity of a person who has spoken harmful words anonymously? In what circumstances should personal information be redacted from productions? At whose cost? How sensitive should parties and courts be about the disclosure of personal information in court filings and decisions given the trend towards increased accessibility of court records?

Join our panel of experts as they reflect on the privacy issues arising in civil practice. The discussion will be based on the following current issues and cases.

Identifying the anonymous defendant – BMG Canada Inc. v. Doe

Production of personal information within and across borders – Datatreasury Corp. v. Royal Bank of Canada

Whole disk inspections and protective orders – Innovative Health Group v. Calgary Health Region

Internet publication, personal privacy and the open courts principle – Moore v. Bertuzzi

Hope you can find time to come on out. Click here for information on how to register.

Happy Halloween!

Dan

Information Roundup – 22 October 2008

Sorry for the lack of Canadian content this week, but here are some links of note.

Jeremy Mittman, German Court Rules That IP Addresses are not Personal Information. A big issue that hasn’t been fully litigated in open court in Canada. (Proskauer Rose Privacy Law Blog)
Laywer2Lawyer, The New Federal Rule of Evidence 502. Following J. Craig Williams and Bob Ambrogi’s podcast is my favorite way to keep finger on the pulse of American legal developments. In this one, Guest Robert D. Owen delivers great substantive input on the new federal rule which lays a foundation for clawback and other agreements intended to limit inadvertent waiver of privilege. (Legal Talk Network)
Richard Nagareda on Taylor v. Sturgell. Taylor v. Sturgell is a case about one individual’s right to make an FOI request following another individual’s identical request and, more broadly, the so-called “virtual representation” doctrine. Although this podcast was recorded before the June ruling of the United States Supreme Court (summary here), it situates the issue in dispute very well. It also includes an interesting argument for reckoning with a concept Professor Nagareda calls “embedded aggregation” – a problem associated with some claims that, based on their nature, will naturally tie the hands of subsequent claimants. (The Federalist Society)

I FINALLY had a good surf last weekend, though not without effort. It took one afternoon of groveling in shore-break, an hour of searching for lost fins in shore-break, several outside diaper changes, one missed afternoon nap, two flight change fees, some hugs and kisses to family who returned home without me and an unplanned “out of office” message to score a few hours of decent surf outside of Halifax on Monday morning. Work-related stress and family-related guilt had me bolting to the airport before my feet had thawed out (hence the second change fee) and missing what was later reported as the best session of the day, but that’s how it goes. Family and friends, you are awesome for supporting this obsession. We should all move to the ocean and work virtually!

See ya!

Dan

Non-party privacy and litigation

Peg Duncan has recently updated the e-Discovery Canada case law digest, and includes an interesting Alberta Court of Queen’s Bench decision from January 2008 called Design Group Staffing v. Fierlbeck. It’s about an employee who e-mailed himself a great number Alberta Treasury Branch records before departing from employment from a company who provided IT services to the ATB and the service provider’s very aggressive reaction. Any employer’s counsel will tell you that this is a very common occurrence.

The service provider applied for an Anton Piller order based on its concern about ATB client privacy and the risk of identity theft (though there was no evidence the defendant had any motive to perpetrate identity theft or sell the information). It turned out the records taken did not contain any client information. The Court criticized the service provider for its lack of diligence and vacated the Anton Piller.

It’s interesting to me how non-party privacy issues can play out in litigation. Was the service provider prepared to take whatever steps necessary to demonstrate its vigilance in protecting customer data to its client given its employee had caused a data breach? Or did it have its own motive for seeking an order and was the privacy claim simply a convenient justification for making a non-genuine demand? (I think it was the former in this case.) Where non-party privacy is engaged, should potentially affected individuals receive notice and have a right of standing? For another recent case in which these issues arise, see Datatreasury Corporation.

Case Report – Fed Ct. minimizes the consequences of the dreaded “all e-mails” access request

On September 26th, the Federal Court held that PIPEDA does not give employees of federally-regulated employers a right of access to e-mails concerning them that are sent between co-workers in their personal capacity and stored on the employers e-mail system.

The applicant, a former employee, filed a request for all e-mails “concerning” him. At the Federal Court, the primary issue in dispute was about whether “personal” (i.e. non-work related) e-mails about the applicant were subject to the right of access in PIPEDA.

PIPEDA does not include a traditional “custody or control” standard for access. Though the access principle refers to personal information “held” by an organization, the existence of a right of access turns on whether a request is for personal information that is collected used or disclosed by an employer “in connection with the operation of a federal work or undertaking.” PIPEDA also expressly excludes information that an individual collects, uses or discloses for exclusively “personal or domestic purposes.”

Mr. Justice Russel Zinn held that the personal e-mails sought were not collected in connection with the operation of a federal work or undertaking and were also excluded as e-mails collected, used and disclosed for personal or domestic purposes. The core of his reasoning is captured in the following excerpt:

First, in my view, the information is not being “handled” by Bell Canada. Like the bycatch of the cod fisherman, personal e-mail is the bycatch of the commercially valuable information that is being handled by Bell Canada. Secondly, to be information collected in connection with the operation of the business, requires that there be a business purpose for the information. There is none with respect to personal e-mails. In fact, from the viewpoint of organizations like Bell Canada, personal e-mails are refuse that take up valuable space and time. It is for this reason, among others, that organizations discourage or limit employee utilization of their computer systems for personal reasons.

Zinn J. also appears to have been influenced by the rights of the co-workers who sent and received the impugned e-mails and their interest in what has otherwise been called “mixed personal information.” He suggests that these individuals would be deprived of the personal and domestic purposes exclusion if PIPEDA was held to apply to their e-mails, hence framing the exclusion as a form of right. Notably, Zinn J. did not expressly consider whether Bell reserved a right to monitor “personal” e-mails under its computer use policy.

There are other very significant aspects of the judgement that relate to the nature of an organization’s duty to clarify the scope of a request and its duty conduct a reasonable search for responsive information.

On duty to clarify the scope of broad requests, Zinn J. stated:

I am of the view that the position stated by Bell Canada that Mr. Johnson “had a responsibility to focus his request” overstates the responsibility of an applicant making an access request. In my view, and in keeping with the practicality of the application of PIPEDA to a request that may suggest an extensive, costly and time-consuming search, the organization receiving a broad request such as that made by Mr. Johnson has two options open to it: (1) it can inquire of the party making the request if he can be more specific as to the information he is requesting, in which case the requesting party does have an obligation to cooperate in defining his request, or (2) it can conduct a reasonable search of information that it can reasonably expect to be responsive to the request. In this case Bell Canada chose the latter course.

And on the duty to conduct a reasonable search, he stated:

The search [Bell Canada] was required to conduct was a search that could reasonably be expected to produce the personal information of Mr. Johnson that, in the ordinary course, would fall under PIPEDA.

…

It cannot be seriously suggested that an organization has a responsibility to recover deleted or overwritten data in the absence of compelling evidence that it existed and that it can be recovered at a reasonable cost. Further, in my view, such a Herculean task should only be required to be undertaken, if ever, in circumstances where there is a critical need for the recovered information.

Johnson v. Bell Canada, 2008 FC 1086.

Information Roundup – 15 October 2008

Here are some recent links of note.

Martin Felsky, Ontario Rules Amendments for July 2009 Contemplate E-Discovery. Martin gives the scoop on the pending Ontario civil rules amendments, which apparently will embed the concept of proportionality into Rule 1.04 and require parties to engage in discovery planning. (Ediscovery Canada)
Jonathan C. Bond, Defining Disclosure in a Digital Age: Updating the Privacy Act for the Twenty-First Century. Mr. Bond argues for a new definition of “disclose” in the U.S. Privacy Act that would make clear that an agency discloses information when it makes it “substantially more accessible” than it had previously. Features a reflection on a recent claim for breach of privacy based on the publication of workplace insurance adjudication decisions. (George Washington Law Review 76:5)
Lew McCreary, What was privacy? This is an in-depth article from this month’s Harvard Business Review. Senior editor McCreary encourages business to understand and manage privacy issues. He captures the most business-relevant aspects of the current dialogue on privacy very well. (Harvard Business Review)

What can I say for myself right now? Hugo’s almost a year and a half now and is pretty amazing. He’s right into growling at things he identifies as scary. He doesn’t always get it right though, which makes me laugh. Like yesterday he growled back at a rather harmless and sad looking stuffed penguin that another child had left abandoned in our local parkette. Anyway, we’ve got another quick surf trip on the horizon, which should get me feeling more human after a beautiful but brutally-windless early autumn in Southern Ontario.

See ya!

Dan

Save the evening of November 19th for the OBA’s dinner panel on litigation and privacy

The OBA privacy and litigation sections are putting on an dinner that readers of this blog may be interested in attending on November 19th from 5:30 pm (cocktails) to about 8:00 pm. Liam McAlear and I will co-chair a panel discussion between Catherine Beagan Flood, Matin Felsky, Alex Cameron and members of our audience. Here is the promo:

What’s all the hush-hush about? Privacy and Civil Procedure: Current Issues and Cases you need to know

Trends in communication and information management are giving rise to new issues in the litigation of civil claims. When should a court make an order to reveal the identity of a person who has spoken harmful words anonymously? In what circumstances should personal information be redacted from productions? At whose cost? How sensitive should parties and courts be about the disclosure of personal information in court filings and decisions given the trend towards increased accessibility of court records?

Join our panel of experts as they reflect on the privacy issues arising in civil practice. The discussion will be based on the following current issues and cases.

Identifying the anonymous defendant – BMG Canada Inc. v. Doe

Production of personal information within and across borders – Datatreasury Corp. v. Royal Bank of Canada

Whole disk inspections and protective orders – Innovative Health Group v. Calgary Health Region

Internet publication, personal privacy and the open courts principle – Moore v. Bertuzzi

Cathy is a litigator at Blakes who has represented media and civil liberties organizations on a number of significant information and privacy matters. Many of you know Martin as CEO of Commonwealth Legal and a charter member of Sedona Canada Working Group 7. Martin also has recent practical experience in managing complex cross-border discovery files and currently sits on the Canadian Judicial Council’s open courts subcommittee. Alex, from Faskens, was co-counsel in the BMG case and has more recently written Leading by Example: Key Developments in the First Seven Years of PIPEDA for the federal Privacy Commissioner.

This is a great panel and a very relevant subject, so we hope to see you there! Click here for information on how to register.

Case Report – Man QB quashes orders for production of media tapes

On August 27th, the Manitoba Court of Queen’s Bench quashed two Criminal Code production orders issued against the CBC and CTV. It held that the deficiency of the information as it related to the media’s privacy interest led to a flawed exercise of judicial discretion.

The order was for audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.

The Court considered the sufficiency of the information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. It held that the informant ought to have disclosed:

that the police had been given prior notice of the press conference but had chosen not to attend;
the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.

The decision stresses that the police ought to do their best to help issuing judges conduct the public interest balancing exercise required by the media search jurisprudence, an exercise made difficult given the media does not participate. The Court also suggested that issuing judges should issue reasons to facilitate effective review.

Canadian Broadcasting Corporation v. Manitoba (Attorney-General), 2008 MBQB 229 (CanLII).

Case Report – BCCA lays out discretionary factors for Criminal Code subpoena of reluctant expert

On October 3rd the British Columbia Court of Appeal heard an appeal of application to quash a subpoena that compelled an expert to testify against his wishes in a criminal trial. It rejected arguments for a general rule against compelling a reluctant expert to testify in a case where she has no prior connection as inappropriate given criminal defendants’ right to make a full answer and defence. Instead, it adopted the following rule:

In summary, then, in the case of compelling an expert’s attendance at trial under s. 698, having established that he or she is likely to give material evidence in the proceeding, the issuing judge or justice should further consider, at least, these matters:

(i)         the prima facie entitlement of the court to every person’s evidence, whether of fact or opinion;

(ii)        whether the expert has some connection with the case in question;

(iii)       whether the expert is willing to come “provided his image is protected by the issue of a subpoena”;

(iv)       whether attendance at court will disrupt or impede other important work that the expert has to do;

(v)        whether, and to what extent, the expert will be required to expend time and effort in preparing evidence for the court; and

(vi)       whether another expert of equal calibre is available.

This list is not exhaustive.

The Court also held (1) that defence counsel’s perceived competence and the potential for a negative impact on other matters in which the expert is engaged are not proper factors and (2) that proof of the necessity of the evidence is not required.

R. v. Blais, 2008 BCCA 389.

Information Roundup – 27 September 2008

Here three links to pieces on discovery and privacy and then two links to pieces that explain how information flows through the internet.

Shari Claire Lewis, Ups and Downs of Discovering Online Data. This is about the privacy issues that are now raised frequently by disclosure requests in claims relating to harmful online expression. (Law.com)
The Sedona Conference WG6, Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy and e-Discovery (Public Comment Version). The title kind of says it all. (The Sedona Conference)
Ralph Losey, Are we the Barbarians at the Gate? Ralph Losey’s commentary on the Sedona Conference cross-border discovery paper includes an impassioned call to bring U.S. privacy regulation in line with the rest of the world. Canada tends to get a decent rap on privacy, but like the U.S. our privacy regulation is sector-based and our jurisprudence on employee computer use favors near absolute employer control. On the other hand, our privacy regulation’s coverage is broad (though not universal) and I understand our regulation is based on a much broader conception of “personal information” than regulation in the U.S. (e-Discovery Team)
Matt Cohen and others, Behind the Browser: What You Need to Know About Current and Emerging Internet Technologies. The first part of this podcast is a simply awesome presentation by long-time internet expert Matt Cohen on how the internet works. From Stanford’s May 2008 Legal Frontiers in Digital Media conference. (Stanford University)
Craig Ball, Fixing Time and Date Values in E-Mail. A brief article explaining how date normalization relates to the form in which e-mails are produced. (Law.com)

I had a nice paddle today from Ashbridges Bay to Bluffer’s Park and back. I spoiled what would otherwise have been a rare purely physical world experience by listening to a couple of podcasts. Good ones though, and I commend them to you. They’re both from Wake Forest University’s Voices of Our Time conference on Why Work? Professions and the Common Good conference from March 2008. I listened to the great keynote by journalist David Ross entitled Making Sense of Modern Professional Life and the panel discussion entitled The Legal Profession and the Market Place. There’s some very good food for lawyer thought here on personal wellness and social and ethical responsibility.

Enjoy!

Dan

Ones to watch – Three good ones about information at the SCC

The Court reports that leave to appeal the Ontario Court of Appeal’s decision in R. v. National Post was granted this week. The case is about the circumstances in which journalists may claim a case-by-case privilege over their communications with confidential sources. Click here for my summary. The SCC docket number is 32601.

The Court also reports that the Ontario Court of Appeal’s decision in The Criminal Lawyers’ Association v. Ontario (Public Safety and Security) will be heard on December 11th. This is the case in which the Ontario Court of Appeal held that the public interest override clause in the Ontario FIPPA (and by implication the equivalent provision in MFIPPA) breached section 2(b) of the Charter because it did not allow an override of the law enforcement and solicitor-client privilege exemptions to the right of public access. The SCC docket number is 32172.

Finally, the Calgary Health Region has filed an application for leave to appeal the Alberta Court of Appeal’s decision in Innovative Health Group v. Calgary Health Region. This is an e-discovery case that is about how courts should exercise their discretion to order whole disk inspections. Click here for my summary. The SCC docket number is 32788. Framed as above, it wouldn’t be a bad issue to get some national guidance on, and the jurisprudence does reflect a range in attitudes, from the very pro-production (characterized by the slightly qualified decision in Hummingbird v. Mustafa) to the very pro-protection as in Innovative Health Group itself. If not of “public importance,” the case is certainly interesting, and draws in issues related to litigation and third-party privacy and the cost of discovery. We’ll see.