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Information Roundup – January 13, 2008

Today was a surf day in Ontario, and we had a social weekend with lots of visits.  Here’s what I read that was interesting this week.

  • National Association of Attorneys General, Task Force on School Safety and Campus Safety.  I’ve been reporting on most of the policy reports that have come out after the Virginia Tech incident, but missed this September 2007 report, which echoes the messages on the importance of information flows to pre-emergency threat assessment as those published in other endorsed elsewhere.
  • Randy Pepper and Randall Stephenson, Young v. Bella:  Concurrent Liability in Defamation and Negligence; Freedom of Expression Values and the Checking Power of the Press.  Long title – thorough and insightful commentary.  Speaks to the 2006 Supreme Court of Canada decision in Young v. Bella from a media law perspective and discusses the public interest responsible journalism defence first recognized in the recent Ontario Court of Appeal case Cusson v. Quan.  My main interest in Young v. Bella is that it creates a form of tort protection for breach of privacy and is speaks to the risk of unbound threat reporting.  In the August 2007 supplement of The Advocates Quarterly.

I’ve also read some interesting texts lately.  I got Philip Slayton’s Lawyers Gone Bad for Christmas and picked up Daniel Solove’s The Future of Reputation on the internet identity issue myself over the holidays.  The first will be an interesting read for Canadian lawyers and I’d recommend the latter for readers of this blog.  I’ve been most enthralled with the 9/11 Commission Report.  I’ve been meaning to read this acclaimed report for a while, but finally downloaded the 20 hour audiobook from Audible.com and have been driving Seanna nuts with it. If you’re in law enforcement, security, audit or even operations I think you’ll find it similarly fascinating.

More on Qualcomm v. Broadcom Sanctions Case

As I’ve said, there will be lots of commentary about the Qualcomm v. Broadcom case from Americans, and I’d rather leave it to them than wade in myself. So this is just a teaser for those who are unfamiliar with the issue. I’ve also provided some links below if I’ve managed to pique your interest.

The order, released on Monday by a California court, brought an end to an intense dispute about failure to produce relevant e-mails that began this January 26th when a witness for Qualcomm in a patent dispute admitted that she had received e-mails from a mailing list (called the “avc_ce” list) which was evidence of Qualcomm’s participation in a standards setting body (called “JVT,” on the “H.2264” standard) before a specific point in time. In the Court’s words, Qualcomm’s assertion that it had not participated in the JVT was “vital” to its success in defeating Broadcom’s waiver argument, and two days after the admission was made a jury returned an advisory verdict that claimed two of Qualcomm’s patents were unenforceable because of waiver.

After the trial Broadcom asked Qualcomm to conduct additional searches to determine the scope of its discovery violation, and eventually Qualcomm agreed to search the current and archived e-mails of its five witnesses based on the terms “avc_ce,” “JVT,” and “H.2264.” Then, in April, Qualcomm’s general counsel and the lead counsel at trial wrote the trial judge to apologize for failing to produce relevant documents.

Qualcomm eventually located over 46,000 responsive and undisclosed records by searching the e-mail archives of 21 employees. Then…

  • …Broadcom filed a motion for sanctions
  • …Qualcomm’s lawyers were ordered to show cause why they should not be sanctioned
  • …Qualcomm came into conflict with its lawyers about who was responsible and refused to waive its solicitor-client privilege for use by the lawyers in the show cause
  • …which all led to the recent order.

This week Magistrate Judge Barbara L. Major held that both Qualcomm and six of its attorneys committed misconduct, focusing on the failure to conduct an e-mail search on obvious custodians on obvious terms on an issue that was obviously central to the case. She ordered Qualcomm to pay over $8.5 million for Broadcom’s attorneys’ fees and other litigation costs (less costs ordered to be paid earlier), referred six lawyers on Qualcomm’s litigation team to the State Bar of California for investigation and ordered these lawyers and some of Qualcomm’s in-house lawyers to participate in a program to craft a model case management protcol to prevent similar events in the future. It appears this protocol – deemed the “Case Review and Enforcement of Discovery Obligations” or “CREDO” protocol – will become a public source of guidance. The Court said:

While no one can undo the misconduct in this case, this process, hopefully, will establish a baseline for other cases. Perhaps it also will establish a turning point in what the Court perceives as a decline in and deterioration of civility, professionalism and ethical conduct in the litigation arena. To the extent it does so, everyone benefits – Broadcom, Qualcomm, and all attorneys who engage in, and judges who preside over, complex litigation. If nothing else, it will provide a road map to assist counsel and corporate clients in complying with their ethical and discovery obligations and conducting the requisite “reasonable inquiry.”

Here is a copy of the order and here are some links to the early comments and articles:

Information Roundup – January 6, 2008

Back to work and excited about a fresh year ahead. On a personal note, Hugo’s eight months old and addicted to pulling himself to a standing position, and I was very pleased to manage a two hour paddle today on Lake O with five degree temps., not a breath of wind and nobody in sight. Here’s what I’ve been reading lately.

  • Randall Stross, How to Lose Your Job on Your Own Time. An article on internet identities and employment duties. (New York Times)
  • Rob Robinson, Compliance 2008, Do You Know What Your Employees are Doing? Outlines new web based software applications that may allow employees to perpetrate informational mischief. (Information Governance Engagement Area)
  • Conrad Jacoby, Discovery of Employee-Owned Computer Equipment. If you’re a regular reader of this blog, you may understand that the storage of work documents on employee home computers is my favorite Bugbear. This article discusses another reason for employers to clamp down – risk and cost reduction in e-discovery. (Internet Business Law Services)
  • Craig Ball, Ask and Answer the Right Questions in EDD. Craig Ball is another of my favorite commentators. Here, he lists 50 questions to consider at the outset of litigation and in meet and confer meetings. (Law.com)

I pick up a significant number of my regular reads from Rob Robinson’s Information Governance Engagement Area. Please check him out if you haven’t done so yet.

Canadian Law Blog Awards

I was very happy to learn that All About Information has been recognized as a runner up Best New Law Blog in the The Canadian Law Blog Awards – the “CLawBies” – won this year by one of my favorites, Osgoode Hall’s The Court. I consider myself a latecomer to legal blogging but have felt warmly welcomed into the community of creative and insightful Canadian bloggers. It’s been an entirely rewarding experience so far and I look forward to my first full calendar year of blogging in 2008.

Thank you to Steve Matthews for conceiving of and publishing the awards. Steve is the founder of Stem, authors the Law Firm Web Strategy Blog and the Vancouver Law Librarian Blog and contributes frequently to Slaw.

Case Report – Arbitrator says thorough probing is a prerequisite to surveillance

On November 27th, Manitoba labour arbitrator A. B. Graham excluded video surveillance evidence that showed an employee who was on light duties playing sponge hockey, in part, because the company ought to have been more direct in questioning the employee about his off duty conduct.

When the employee was confronted about playing sponge hockey, he did not lie but his answers were evasive. As a result, the company hired a private investigator to conduct video surveillance. Although the arbitrator excluded the video surveillance evidence based on a finding that the company should have asked the employee pointed questions first, he also held that the employee breached a duty to cooperate in the accommodation process by being more forthright about playing hockey and whether it was consistent with his medical restrictions.

Re Praxair and General Teamsters Local Union 979, [2007] M.G.A.D. No. 37 (Graham).

Case Report – Court says casual drug user not protected under human rights legislation

Yesterday the Alberta Court of Appeal issued its much-anticipated Chiasson v. Kellogg Brown & Root award, and in doing so, found that a casual drug user who was terminated after failing a pre-employment drug test was not subjected to discriminatory treatment under Alberta human rights legislation.

The key issue addressed by the Court of Appeal is whether zero tolerance drug testing policies are de facto discriminatory because they rest on a presumed assumption that casual drug users are at greater risk being impaired at work, in turn, because they are likely to fall into a “cycle of abuse.” This issue – let’s call it the perceived disability theory of casual drug user protection issue – was raised but not clearly determined in the Ontario Court of Appeal’s leading Entrop decision. It is critical in Canadian drug testing law because it determines the scope of legal protection against “unnecessary” drug tests. Ironically, Alberta is one of three provinces that have passed broadly-applicable regimes for protecting employee privacy rights. In fact, a drug testing complaint in which Kellogg Brown & Root is a respondent is now proceeding before of Alberta’s Information and Privacy Commissioner. In other jurisdictions, including Ontario, casual users who are given offers of hire conditional on testing clean have no clear avenue of redress should they feel their privacy rights have been violated.

The Court of Appeal held that the Alberta Court of Queen’s Bench had erred in finding that the complainant was treated as if he was drug dependent and likely to report to work impaired. It rejected the idea that a zero tolerance policy necessarily targets those who are at risk of becoming addicted and held that all the Kellogg Brown & Root policy does is protect against the lingering deleterious effects of cannabis use (a point apparently proven in evidence). The Court of Appeal said:

Chiasson testified that what he did on his own time was his business. He did not at any time suggest that he would cease his recreational use of drugs while employed by KBR. As we have already stated the evidence established that effects of cannabis use lingers for days particularly given that the concentration of active ingredients is now many times higher than it was in the past. Given these concerns the policy’s effects are not misdirected in their application to Chiasson.

We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely. This is a legitimate presumption. Its goal is laudable since carnage on the highways is a leading, but often ignored, cause of death nearing epidemic proportions. Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.

On this view, whether a drug and alcohol policy discriminates against casual users is a question of fact. This is consistent with the employer-favoured reading of Entrop, in which an Imperial Oil policy was that was found to discriminate against all drug users included langauge stating a belief in the “cycle of abuse” to which all drug users subject themselves. The Alberta Court of Appeal suggested that the perceived disability finding in Entrop was simply based on this language.

Chiasson v. Kellogg Brown & Root, 2007 ABCA 426.

Case Report – E-mails from employee hotmail account admissible

On December 11th, Alberta labour arbitrator Allen Ponak issued an award ruling that e-mails produced from a forensic analysis of an employee’s work computer were admissible in evidence.

The employer retained a forensic IT specialist to conduct the analysis after terminating the grievor (a college professor) for engaging in inappropriate relationships with at least three students. When it conducted the search, the college already had received a complaint from one student, had found corroborative evidence in the grievor’s e-mails sent and received on its own e-mail system (the admissibility of which was not challenged) and had received a corroborative report from another individual. The college claimed that conducting word searches by the names of the grievor’s former students was the most effective way of determining whether he had engaged in additional inappropriate relationships.

Arbitrator Ponak admitted the evidence on a rather unremarkable application of the Doman Forest Products three-part test. At the outset, however, he did comment on the expectation of privacy the grievor had in information sent and received through a hotmail account but on a computer owned by the college.

We start from the premise that employees have some expectation of privacy in the receipt and transmission of emails from an internet provider that is not their employer’s (Weir; McIsaac et al.). Thus, it was reasonable for the Grievor to believe that emails on his hotmail account were beyond the reach of the College. In the Board’s view, if the Grievor’s hotmail was exclusively located on the Grievor’s own private computer it would be inadmissible without the Grievor’s consent. The Grievor, however, used the computer provided to him from the College for some of his hotmail email, changing the circumstances. The College computer was intended primarily for College work and it belongs to the College, factors which give the College some rights to access that computer. The Grievor’s right to privacy for the contents of the College computer is not absolute. At the same time, recognizing that the policy against using the College computer for non-College matters has not been rigidly enforced (if enforced at all), the Employer’s access to the contents of the computers it provides its employees is not unfettered either. The Employer’s right to search the contents of an employee’s computer must be balanced against an employees expectation of privacy and is subject to a test of reasonableness.

Arbitrator Ponak did find that the search was conducted in a reasonable manner, but in doing so did not specifically endorse the narrow search protocol used by the college as preferable to a broader search protocol or manual review. This demonstrates a more “hands off” approach to scrutinizing a reasonable grounds investigation than demonstrated in the recent and well-known University of British Columbia case, which I discussed here and here.

Re Lethbridge College and Lethbridge College Faculty Assn. (Bird Grievance), [2007] A.G.A.A. No. 67 (Ponak) (QL).

Case Report – Court stresses burden on party challenging keyword search protocol

On December 3rd, the Alberta Court of Queen’s Bench dismissed a motion for more fulsome production, finding the applicant failed to discredit the respondents’ keyword search protocol.

The dispute centered on a set of 50,000 records that were identified and collected in a related action. The respondents reviewed 15,000 of the records manually and conducted a keyword search on the remaining 35,000. This process resulted in a set of 110 records that were produced.

The Court cited the “Ontario e-Discovery Guidelines” and its Principle 10, which endorses the use of electronic tools to identify information and records of arguable relevance. It held that the applicant had the burden of proving the inadequacy of the search protocol, held that it would be improper to draw an inference about the quality of the search from the number of records produced and held that the applicant did not otherwise prove inadequacy. In reaching this conclusion, the Court suggested that the applicant ought to have challenged the protocol more vigorously in its cross examination or ought to have called expert evidence with the same intent.

Shell Canada Limited v. Superior Plus Inc., 2007 ABQB 739 (CanLII).

Case Report – Preservation order substituted for Anton Piller in e-docs case

On November 23rd, the Ontario Superior Court of Justice set aside an Anton Piller order in favour of a preservation order.

The Court held that the plaintiff had failed to prove a real possibility that the defendant would destroy incriminating documents or things and, alternatively, that the scope and quality of the electronic records seized weighed against the order. There are significant parts to both findings.

On the possibility of destruction finding, the Court rejected the plaintiff’s argument that the impermanent nature of arguably relevant electronic evidence justified the Anton Piller. Although not entirely clear from the award, the plaintiff appears to have argued that records of web-browsing were relevant and that the search was necessary because web pages and IP log files stored in memory and swap files would be subject to loss in the ordinary course. The Court said:

This evidence does not support an allegation of intentional destruction of evidence, to justify the court’s interference. It does not tell the court when evidence may be lost by use of computers in the ordinary course of business. Inadvertent over-writing of files by on-going use of computers could be addressed by a demand to preserve evidence.

The Court was also not impressed with the plaintiff’s execution of the order. For one, it seized a home computer belonging to a personal defendant without authorization. More fundamentally, the Court took issue with scope of the order itself (citing Celanese for the proposition that the scope of the order should be as narrow as possible) and the fact that it enabled the plaintiff to seize virtually all of the defendant’s records. It said:

The scope of documents seized under the order is breathtaking. It includes documents that are personal in nature, such as private e-mails unrelated to the Wasaya workplace, individual banking records, income tax returns, personnel files, patient’s medical records, and other materials that have no relevance whatever to the allegations NAC makes in this litigation. It also includes confidential business records such as financial statements for Wasaya, marketing plans, restructuring plans and other documents bearing on Wasaya’s market position as NAC’s competitor. Documents related to other litigation involving Wasaya, and protected by solicitor-client privilege, were also caught in the net.

In the result, the Court substituted a non-specific order to, “preserve documents relevant to the issues in this litigation and to produce such documents as may be required in accordance with the Rules of Civil Procedure.”

NAC Air, LP v. Wasaya Airways Limited, 2007 CanLII 51168 (Ont. S.C.J.).