Case Report – Defendant sanctioned for failure to produce despite partial proportionality plea

On February 13, 2008, the Supreme Court of Prince Edward Island (Trial Division) struck a statement of defence as a sanction for non-production. The judgement is notable for its strong statements in favour of full-production despite burden and despite any assignment of particular value to the evidence sought. However, the defendant’s ability to raise proportionality was limited by a number of factors, including that the burden of production appeared to have been caused by a failure to take reasonable preservation steps (i.e. there was a so-called “downgrading” of data). The defendant also raised the burden of production late in the dispute in response a contempt motion.

Thanks again to Peg Duncan for passing this on. Peg edits the case digests on LexUM’s e-Discovery Canada site. Please check them out!

Jay v. DHL, 2008 PESCTD 13 (CanLII).

Case Report – Limited forensic inspection allowed

On March 17th, Mr. Justice Perell upheld an order which allowed a plaintiff’s expert to recover and search data from a defendant’s personal computer.

In furthering its $1 million departing employee claim, the plaintiff had proven that the individual defendant used his personal computer for business purposes. It had also produced e-mails it had received from the defendant that the defendant had not produced himself because they had been deleted. The plaintiff claimed the missing e-mails were relevant to whether the defendant breached his non-solicitation duty. In these circumstances, Master Dash ordered an inspection to be be made by way of a search of recovered e-mails based on client names.

Mr. Justice Perell considered the existing jurisprudence and Sedona Canada Principle 2 (on proportionality) and upheld Master Dash’s order. He said:

Returning to the case at bar, in my opinion, the short endorsement reveals that in ordering an inspection of the computer, Master Dash either: (a) concluded that there was evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents; or (b) he balanced a variety of factors to conclude that inspection should be ordered including: the relevance and importance of finding evidence that Mr. Cox had sent e-mails to Vector’s customers; the likelihood that Mr. Cox did send e-mail messages to clients given his admitted use of his personal computer for business purposes; the carefully defined parameters of the inspection; and the plaintiff’s willingness to pay for the costs of the inspection. In my opinion, whether Master Dash did (a) or (b), he applied the law correctly to the circumstances of the case at bar.

Thank you to Peg Duncan for passing this on. Please check out LexUM’s e-Discovery Canada site for its great case law digest and other information related to e-discovery in Canada.

Vector Transportation Services Inc. v. Traffic Tech Inc., 2008 CanLII 11050 (ON S.C.).

Information Roundup – March 24, 2008

I have been working hard gearing up for a surf vacation (different than a surf trip for those in the know) and haven’t posted much lately, but here are some of the most captivating things I read and listened to this long weekend that may be of interest.

James Hamilton, “A Matter of Principle: Vince Foster and the Attorney-Client Privilege.” A September 2006 lecture by the lawyer who successfully argued the Swidler Berlin v. United States case (on posthumous solicitor-client privilege) to the United States Supreme Court. I was drawn to it for its promise of something on the substance of solicitor-client privilege but found it most fascinating for its discussion of litigation tactics. (Yale Law School)
Stephanie Rosenbloom, “The Professor as Open Book.” This is about faculty members who use Facebook and other Web 2.0 applications. As I’ve expressed before, I’m interested in the idea that Web 2.0 can have a positive humanizing effect on professional relationships. (New York Times)
Richard Perez-Pena, “With Order to Name Sources, Judge is Casting a Wide Net.” About a United States federal judge’s order against reporter Tony Locy for failing to name her confidential source. The order, which involves significant daily fines and a proviso that she pay them herself, is unprecedented. (New York Times)
Bob Cauthorn, “The Changing Rule of Journalism.” This is a few years old, but was a find for me. Mr. Cauthorn is the former head of the San Francisco Chronicle’s new media division and the more recent founder of a new “social news” site called City Tools. He has some very harsh words for reporters and editors in this summer 2005 speech, blaming the newsroom (not the Internet) for a mainstream media malaise. He says, “What were talking bout is newspapers being so fundamentally reduced in their ability to do business that they don’t have the cultural heft that they once had… that they don’t matter as much as they should.” Apparently this speech caused a stir at the time. No kidding, but very engaging. (UC Berkeley Graduate School of Journalism)

My recent interest in the media and freedom of the press is about building an information and privacy practice with a more hefty identity and knowledge base (to steal Cauthorne’s good word). It has become clear to me that gaining a deeper understanding of the role of the press under the Charter is key to fully understanding the “macro” information flows that are structured by our public law – information flowing to and from government, to and from law enforcement and into and out of the courts. I’ve done some energizing and englightening self-study as of late and hope you have enjoyed sharing in it!

See ya!

Case Report – OCA sets aside contempt order issued against journalist

Yesterday, the Ontario Court of Appeal held that a trial judge erred in finding a journalist in contempt and ordering him to pay over $36,000 in costs for failing to reveal the identity of a confidential source before the source was given a chance to come forward.

The journalist, Kenneth Peters of the Hamilton Spectator, was compelled to testify in a suit which alleged that two municipalities had improperly leaked confidential information to the media. The identity of his source was relevant, if not essential, to the claim.

Mr. Peters was first given an opportunity to testify only as to whether one of the defendants employed his source and, having refused, later given an opportunity to disclose the identity of an individual who accompanied his source but who had not been promised confidentiality. When Mr. Peters refused to answer this question, the trial judge ordered a hearing in which he was to “show cause” why the court should not find him in contempt. A day before the show cause hearing the confidential source came forward. The judge proceeded with contempt proceedings nonetheless, though he changed the charge to one of civil rather than criminal contempt.

In allowing the appeal, the Court of Appeal did not comment on the validity of the privilege claim other than stating that the trial judge ought to have assessed it against the Wigmore criteria, which in turn reflect the relevant Charter values. Instead, the thrust of the appeal judgement is about the restraint that judges should exercise in compelling testimony which reveals a source’s confidences when a claim of privilege fails. On this point, the Court’s essential finding is well-summarized from a quote it drew from a British Columbia Supeme Court judgement: “where members of the media are called to give evidence, it is incumbent upon courts to balance the necessity of having evidence before the court against the special role of the media as recognized by section 2(b) of the Charter.”

In the circumstances, the Court held that the trial judge did not show sufficient restraint:

At a minimum, the appellant should have been afforded the opportunity to consider his position in light of the fact that he had been ordered to disclose the confidential information. The appellant also should have been given the opportunity to consult with the confidential source to determine whether, in light of the court’s order, the source still insisted that the confidentiality be maintained.

Also based on the principle of restraint, the Court held that the trial judge erred in proceeding with a contempt hearing after the confidential source had come forward and erred in imposing a substantial costs award.

St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182.

Case Report – Adverse inference drawn based on negligent spoliation

On February 27th, the New Brunswick Court of Queen’s bench dismissed a counterclaim because the plaintiff (by counterclaim) had allowed documents that the defendant required for its defence to be destroyed.

After terminating its franchise agreement with the defendant, the plaintiff transferred a job order file on an over-bid construction project to the new franchisee, who destroyed the file. The defendant (by counterclaim) did not allege bad faith, but alleged that the plaintiff ought to have instructed the new franchisee to safeguard the files, which were essential to its defence. The Court rejected the plaintiff’s claim that the defendant did not call an available witness in favour of raising its spoliation defence. It also held that the plaintiff had a duty to preserve the job order files that was bolstered by its own termination letter, which said it would make the records available to the defendant in the event of litigation.

Elliott v. Trane Canada Inc., 2008 NBQB 79.

Information Roundup – March 16, 2008

What a beautiful weekend! Nice walks with Seanna and Hugs, who were also good to let me go on a long paddle each day. The pack ice has broken up at Cherry Beach, so I was able to get behind the Toronto Islands again. The hands-down nicest beachfront in Toronto is off of Gibraltar Point. Nice sandy bottom, and at this time of year the water is super-clean and blue.

Shorter list this week, but here’s what I’ve gotten into.

Ralph Losey, “Sanctions Have Been Lifted Against the ‘Qualcomm Six’ and a New Trial Ordered Where They May Now Speak Freely to Defend Themselves.” Mr. Losey does a wonderful job of dissecting the tactics behind the latest turn of events in the Qualcomm sanctions case, which appears to just be getting interesting. (e-Discovery Team)
Tom Schreiter, “Inevitable Appeal to SCC in R. v. Harrision.“ A critical commentary of the recent R. v. Harrison decision in which the Ontario Court of Appeal held that evidence obtained through an unlawful search characterized as “brazen and flagrant” should not be excluded under section 24(2) of the Charter. (The Court)
David Ardia, “Oklahoma Curtails Online Access to Court Records.” I recently attended OBA recent seminar on Master Dash’s December 2007 decision in Moore v. Bertuzzi . It’s about our deemed undertaking rule, and affirmed that the rule clearly “opens” discovery transcripts filed on undertakings motions. Currently, there is a near-absolute bias towards openness under our Ontario regime, a bias clearly endorsed by the (very esteemed panelists). The one questioner of the night raised internet publication and searchability as as causing the end of practical obscurity and cause for concern. Like most members of the bar I favour strict limits on secret proceedings. I also question whether a near-absolute rule can be maintained. Is the Oaklahoma policy, which seems to be about sustaining openness through sustaining practical obscurity, where the answer should lie?

Amy Gadja’s “Privacy, Ethics and the Meaning of News”

I had just finished reading a solid editorial by Adam Cohen entitled “What’s on TV Tonight? Humiliation to the Point of Suicide?” Mr. Cohen says “Humiliation TV” pushes the boundaries of freedom of the press too far. He focuses on a court decision from this February in which a New York court let a lawsuit against NBC proceed for its role in a man’s suicide. NBC’s To Catch a Predator team had caught the man soliciting an online decoy posing as a 13-year-old boy. When it stormed his house together with the police he committed suicide. Justice Chin of the Federal District Court in New York rejected a motion to dismiss several claims made by the man’s sister and, in doing so, said that a jury might conclude that NBC “crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement.”

I was then happy to stumble upon an academic paper from Amy Gaja, an Assistant Professor of Journalism & Law at University of Illinois College of Law. In “Privacy, Ethics and the Meaning of News,” Ms. Gaja raises the To Catch a Predator case an example of judicial reaction to the “coarsening” of the news: “If Woodward and Bernstein’s heroic sleuthing provides the iconic media image of the last generation, our own may well be the sprawling media encampment outside the gates of Paris Hilton’s estate.”

Dated March 5th, Ms. Gadja’s is very timely. Not only is it published on the heels of the high-profile American case, here in Ontario, our Court of Appeal just issued a decision which required it to evaluate the role of investigative journalism under our own constitution. (My report here.) The Court dismissed a charge that the disintermediation of news publication (the “citizen media” trend) weighed against an absolute confidential sources privilege, but nonetheless issued a decision which clearly renders the media’s investigative role subordinate to that of the state.

The Gadja paper is also excellent. Ms. Gadja thoroughly reviews the evolution of American courts’ willingness to immunize media defendants from privacy claims, a path she characterizes as having come full-circle as the media has matured from its early 20th century “yellow journalism” roots and appears now to be in a phase of regression. Although she acknowledges the media’s recent failure to self-police, Ms. Gadja argues that the First Amendment demands that courts allow a broad mesure of freedom in determining what can be published as news by setting a legal standard for sanction that sits well-below the media’s own ethical standards.

Though I have a different perspective, Ms. Gadja makes a compelling argument. What’s most interesting about her analysis – and the similar idea expressed in Adam Cohen’s editorial – is that it implies that the constitutional standard for freedom of the press ought to vary based on the trust that can be reasonably imposed in the media. To me, this brings the issue back to the internet, and the incredible economic pressure it is placing on traditional news organizations. Will consumers be willing to pay a “freedom of the press” premium to these organizations so they can afford to produce a product that keeps the courts at bay? Time will tell.

[Disclaimer. I actually have not yet tracked-down and read the February award in the To Catch a Predator Case. If you have a copy you are permitted to send me, please do. Thanks!]

Case Report – Albertyn articulates standard for use of surreptitious surveillance

In this February 12 arbitration award, Arbitrator Albertyn articulates a novel and forgiving standard for use of surreptitious video surveillance as follows:

The proper context for evaluating the reasonableness of the decision to undertake the surveillance is not the ideal circumstance in which no stone is left unturned. Every aspect of the motivation need not be perfect and yet the decision may be reasonable. The question is one of weight. In every context in which a surveillance decision is made, there will be some things the employer failed to think about, there will be some check or some information which could usefully have been obtained in advance, which the employer failed to obtain. Hindsight and skilful advocacy will show what more could have been done. A gap here or there will not necessarily be fatal, though, to the reasonableness of the decision. Determining the reasonableness requires making a decision as to whether, taken overall with the lack of information that might have been obtained, and with the information that was available and was obtained, was the employer cavalier, capricious, arbitrary or careless in arriving at the decision to initiate surveillance. If, taken overall, despite the flaws in the information the employer had, the employer can show itself to have been bona fide, thoughtful and careful in arriving at the decision, and to have had substantive grounds for suspicion, the surveillance will be reasonable.

The reasonableness standard applies because the mutual respect of management and employees requires that an employee be given the benefit of the doubt until the employee has given some reasonable cause for the employer to believe (possibly erroneously) that the employee is cheating, taking advantage of the situation and obtaining a benefit that is not justified.

In the circumstances, Mr. Albertyn allowed the evidence to be admitted. He said:

I find, despite some deficiencies, that Ms. Peters had reasonable cause for her decision to use surveillance. As Employer counsel submits, Ms. Peters was not acting on a whim. From her perspective, the Grievor had been duplicitous in the past, her attendance record was bad, she appeared not to have needed physiotherapy when she worked previously at PMH, there were no restrictions on what the Grievor could do at work yet the physiotherapy had gone on for many weeks, and, had Ms. Peters asked the Grievor for consent to check on her continuing need for physiotherapy, she thought she might face another harassment complaint. Taken together, there was enough for her to doubt the veracity of the Grievor’s continuing visits to physiotherapy, week after week, and to warrant undertaking a check to see if her suspicions were justified.

Re University Health Network and Ontario Public Sector Employees Union, 2008 CanLII 4546 (ON L.A.).

Information Roundup – March 9, 2008

I managed a decent surf yesterday. It was a thigh-high shore-break session over concrete and re-bar. Oh yeah, minus six centigrade too. Not exactly reminiscent of the islands, but fun anyway. I needed the surf because the “spring forward” weekend can otherwise be a bummer, especially when it snows a foot.

Here’s what I’ve found interesting this week.

Eric Freedman, Reconstructing Journalists’ Privilege. This is timely given the recent National Post case (report here). Professor Freedman argues for a class privilege akin to solicitor-privilege, stating that, “any qualified reportarial privilege which depends on judicial balancing of the importance of disclosure in individual cases is inherently structurally defective.” (Social Science Research Network)
Office of the Privacy Commissioner of Canada, Radio Frequency Identification (RFID) in the Workplace: Recommendations for Good Practices. This has been a published as a consultation paper, so may lead to a more pointed opinion in the future. As it stands, it is very reserved, with the Commissioner only coming out firmly against the use RFID implants for any purpose. The paper is nonetheless useful. It discusses some of the technical options that employers should run-through in building systems that limit collection. It also has a nice general discussion of the meaning of personal information, with references to PCC orders and other sources. (Office of the Privacy Commissioner of Canada)
Guidelines for Overt Video Surveillance in the Private Sector. Published this week by the PCC, the Alberta OIPC and the British Columbia OIPC. Hat tip to David Fraser.
Thomas J. Smith, Now Watch the Lawyers Blitz: The NFL destroyed the tapes. But it still hasn’t escaped the sack. This is an extremely interesting spoliation news story (likely to become a case) about video taken by the New England Patriots of other teams’ defensive signals. The NFL demanded tapes from Patriots and destroyed them immediately after completing its cheating investigation in September 2007. Just over a week after the NFL announced the tapes had been destroyed, the Patriots and its coach Bill Belichick were hit with a class action lawsuit filed on behalf of New York Jets season ticket holders. The tapes could contain evidence of whether the stealing of signals gave the Patriots an unfair advantage, but are now gone. Did the NFL have a duty to retain them? (Law Times, reprinted at K&L Gates).
Judge John G. Koeltl, The Virtue of Brevity. Excellent. Words to practice by. (American Bar Association Section of Litigation)

Seanna’s a blogger now. Here’s a link to her new group blog, which is called “84 days of discipline.” It’s pretty niche (and pretty personal too eh Seanna), but maybe some of you are into following the interactive training log of three elite female distance runners.

Take care!

Case Report – Surveillance evidence admitted and termination upheld

On January 4th, arbitrator Watters upheld a termination based on the admission of evidence obtained by surrpetitious video surveillance which revealed the grievor performing activities inconsistent with his medical restrictions.

Mr. Watters viewed the evidence before determining whether it would be admitted under a two part reasonableness test: (1) was there a reasonable basis to engage in surveillance? and (2) was it conducted in a reasonable manner? In determining that the evidence was admissible, he considered that:

the Union had advised its members of the employer’s practice in using video surveillance;
the grievor worked in the highly-regulated gaming industry (which lowered his expectation of privacy, presumably based on the trust required of gaming sector employees);
the grievor had not shown a material improvement in his condition in approximately four months, even after the company medical adviser had questioned whether there was an objective basis for the medical claim;
the manager initiating the surveillance had reason to doubt the grievor’s credibility because she had administered two previous WSIB claims in which the his medical claims had been rejected; and
the grievor was not forthright at the hearing, which supported the reasonableness of the manager’s decision to engage in surveillance rather than confront the grievor.

Arbitrator Watters also rejected the Union’s argument that the evidence of malingering should be excluded because the employer had improperly terminated the grievor’s modified work arrangement (as he had found). Instead, he ordered compensation as a remedy.

Re National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Local 444 and Windsor Casino Ltd. (Hideq Grievance), [2008] O.L.A.A. No. 35 (QL) (Watters).