Information Roundup – March 2, 2008

    Looking forward to a nice paddle today, then up to my parents’ for my dad’s birthday. Happy birthday dad!

    Here’s what I’ve been into in the last couple of weeks.

    Case Report – Rise of citizen journalism does not devalue work of professional journalists…

    …but law enforcement trumps all.

    Yesterday, the Ontario Court of Appeal restored a search warrant and assistance order that was served on the National Post. Unless the order is stayed pending an appeal, it will require the Post’s editor-in-chief to provide the RCMP with document and envelope received from a confidential informant. The RCMP believes the document and envelope will contain evidence that could identify a person who committed a criminal conspiracy against former Prime Minister Jean Chretien.

    In 2001, Andrew McIntosh from the Post received a document that appeared to be a Business Development Bank of Canada loan authorization for a $600,000 loan to the Auberge Grand-Mere. The document listed a $23,000 debt to “JAC Consultants,” a Chretien holding company. The auberge was in Mr. Chretien’s home riding, and he had previously admitted to contacting the BDB’s president to urge him to approve the loan.

    McIntosh circulated copies of the document to the BDBC, to the Prime Minister’s Office and to Mr. Chretien personally the course of his investigation. Based on a comparison between its file copy of the document and what McIntosh provided, the BDBC complained to the RCMP that the document was a forgery. As part of its investigation, the RCMP sought the document and envelope. Although the allegedly forged communication had been widely distributed, it believed that document and envelope might contain fingerprints and DNA that would help it identity the sender. The RCMP obtained a search warrant and an assistance order that became the matter of the appeal. The Post resisted because McIntosh had promised anonymity to his informant (who simply passed the documents to him) and (so it appears) because he questioned the whether the disclosure would actually help the RCMP’s pursuit of the wrongdoer.

    The Court of Appeal award turned on an analysis of the fourth “Wigmore criterion” – the final criterion for recognition of a case-by-case privilege, which asks whether the injury to the relationship between the parties to the communication that would flow from the disclosure is greater than the benefit gained from the correct disposal of the litigation. The Court held that it was appropriate to simply assess the Post’s Charter claim based on the Wigmore analysis because it required the same balancing of interests required by section 2(b) of the Charter.

    The Court held that the judge who reviewed the search warrant erred in finding that balance weighed in favour of finding that the envelope and document were privileged because she wrongly inferred that there was only a speculative possibility that the documents would advance the investigation and wrongly disregarded the law enforcement interest at stake. In its reasoning, the Court held that an investigative journalist cannot insulate a potential wrongdoer from a law enforcement investigation by giving an absolute promise of confidentiality because this would lead to law enforcement’s role (and the court’s oversight of its role) being usurped:

    McIntosh himself recognized that there must be at least some limits on the press’ entitlement to protect the confidentiality of its sources. That is why he told X that his promise of confidentiality would remain binding only so long as he believed that he was not being misled. However, once the court concluded that there were reasonable and probable grounds to believe the document was a forgery, McIntosh could not arrogate to himself the right to decide whether X was a wrongdoer.

    Notably, the court rejected an argument that must have gotten the Post and the other participating media organizations backs’ up. The Crown had argued that citizen journalism was reason not to treat the journalist-source relationship as one which should be “sedulously fostered” under the third Wigmore criterion. The Court said:

    We reject the Crown’s first contention. The case-by-case approach to privilege does not require us to establish the boundaries of legitimate journalism. The National Post is a recognized national news organization and McIntosh is a respected journalist. It can hardly be disputed that they fall within the class of persons who may be entitled to the benefit of journalist-confidential source privilege.

    This comment is likely more interesting than significant, but the court’s Wigmore analysis goes more to the fundamental role of investigative journalists under the Charter. Members of the Fourth Estate are fierce defenders of this role, so we’ll see if they try for an appeal.

    R. v. National Post, 2008 ONCA 139.

    Appeal foreseeable in broad challenge to PIPEDA’s interference with litigation

    On February 20th, the New Brunswick Court of Appeal held that State Farm Mutual Automobile Insurance Company did not need leave to appeal a January 30th order by the New Brunswick Court of Queen’s Bench. The Queen’s Bench had stayed State Farm’s application, which challenged the Privacy Commissioner’s jurisdiction to investigate its surveillance of a plaintiff in a motor vehicle claim. My summary of the January 30th case is here.

    State Farm Mutual Automobile Assurance Company v. Canada (Privacy Commissioner), 2008 CanLII 6112 (NB C.A.).

    Case Report – Denial of access to complainants’ identities upheld

    On February 14th, the Information and Privacy Commissioner/Ontario held that Queen’s University could deny access to records that would reveal the identities of three female complainants whose harassment complaints led the University to issue a trespass notice to an individual who was not a member of the university community. It noted that the requester had engaged in persistent and harassing behaviour towards the complainants, held there was sufficient evidence to conclude that the requester’s motives were not benevolent and applied the exemptions in sections 14(1)(e) and 20 of FIPPA. It further held that disclosure would be presumed to be an unjustified invasion of privacy under 21(3)(b) (which protects information compiled as part of an investigation into a possible violation of law) and that that “absurd result principle” did not justify giving the requester access to e-mails he had sent the University in the course of its investigation.

    Queen’s University (Re), 2008 CanLII 5953 (ON I.P.C.).

    Case Report – Request for ultra-broad production order dismissed as a fishing expedition

    On January 18th, the Ontario Superior Court of Justice dismissed a motion requesting that a defendant to a wrongful dismissal claim image all computers, mobile handheld devices and other electronic devices for inspection because it had produced an attachment to a single e-mail without the lead e-mail itself.  The defendant claimed the lead e-mail was blank (containing only the attachment) and had long-since been destroyed.  The Court ordered the defendant to use its best efforts to locate the lead e-mail and dismissed the requested order as speculative.

    Ritchie v. 830234 Ontario Inc. (Richelieu Hardware Canada Ltd.), 2008 CanLII 4787 (ON S.C.). 

    Case Report – Drug testing JR application dismissed

    On January 29th, a panel of the Ontario Superior Court of Justice (Divisional Court) dismissed a application for review of drug testing arbitration decision in which Imperial Oil was held to have violated a collective agreement by implementing random and unannounced drug testing for cannabis impairment.

    The policy challenged at arbitration was the same policy that had been upheld by the Ontario Court of Appeal in 2000 in Entrop. Based on Entrop, and the Court of Appeal’s specific finding that random alcohol testing in safety-sensitive positions did not violate the Human Rights Code, Imperial Oil re-instituted random drug testing for safety-sensitive positions by using a new testing technology that could determine current impairment by way of a saliva test.

    In December 2006, the majority of an arbitration board chaired by Arbitrator Michel Picher upheld a grievance which challenged the re-implemented random drug testing policy. The board held that the Union was not barred from challenging random drug testing despite being barred from challenging random alcohol testing (based on an equitable doctrine that bars claims after inordinate delay) because random alcohol testing by breathalyzer and random drug testing by saliva test were qualitatively different tests. A key factor, as Mr. Picher’s wrote, was that the saliva testing processing in use by Imperial Oil did not provide an immediate, on-site reading of impairment. The board also found that sampling by buccal swab was more invasive than sampling by breathalyzer and distinguished Entrop by finding that the Court of Appeal’s decision was made in consideration of rights granted under the Human Rights Code rather than a collective agreement.

    The Divisional Court rejected Imperial Oil’s argument that the board erred by amending the collective agreement and by relying on unsupported findings of fact. It also held that the board did not made a patently unreasonable decision given the Court of Appeal’s decision in Entrop. It said:

    The Board explained why it found the testing to be an invasion of privacy and an infringement of the rights under the collective agreement. As a result of its interpretation, employees under the parties’ collective agreement receive greater protection than they would have under the Code because of their unionized status. Such an interpretation is not inconsistent with the Code, which provides minimum standards for those covered by it. However, the Code does not provide an exhaustive guide as to the meaning of dignity and respect in the workplace generally.

    Based on this reasoning, the Divisional Court held that the board did not err in assessing the policy against the somewhat unique anti-discrimination clause in Imperial Oil’s collective agreement, nor did it err in assessing Imperial Oil’s exercise of management rights.

    There are some limited factual bases on which other employers may attempt to distinguish the Imperial Oil arbitration decision. Despite these bases, Mr. Picher’s principled attack on random drug and alcohol testing (now upheld by the Divisional Court) is a feature which makes the decision both significant and problematic for employers.

    Imperial Oil Ltd. v. Communications Energy and Paperworkers Union of Canada, Local 990, [2008] O.J. No. 489 (QL) (S.C.J.).

    Case Report – Self-responsibility stressed in e-discovery order

    On January 21st, Master MacLeod of the Ontario Superior Court of Justice issued an order which allowed the parties to a complex e-discovery to proceed. He cited the Sedona Canada Principles and issued a limited order after considering the potential costs and the impact on individual privacy rights that would be associated with a definitive order for more fulsome production.

    In litigating a class action claiming product liability damages caused by a heart valve, the plaintiffs brought a motion to challenge the defendants’ production of (1) two clinical trials databases which included adverse events data, (2) questionnaires used to collect adverse event data and (3) a data entry database associated with the adverse events databases. The two clinical trials databases were maintained by the University of Pittsburgh (a non-party) pursuant to a research agreement. Likewise, the questionnaires were held by clinicians thoughout the world pursuant to research agreements. The defendants’ legal rights to the data entry database (called “POP”) were less clear, a significant complication given the University’s residence in a foreign jurisdiction.

    There was no dispute that 28 “freezes” of the adverse events databases (representing data stores at a point in time) included highly relevant information, but the plaintiffs claimed that the defendants’ production effort was too slow and that the defendants’ manner of production did not allow them to assess the data’s validity. One of the defendants’ key objections: the University had redacted patient initials and birth-dates from the production. The University did not adduce evidence on the motion, but the defendants argued on the University’s behalf that it would be exposed to liability and a potential breach of U. S. federal or state privacy legislation if it provided the data in unredacted form. The defendants also raised the costs the University was bearing and would additionally bear if further, more fulsome production was to be ordered.

    Master MacLeod considered the competing demands and said that the production “solution” should meet four criteria. He said:

    • The data produced to the plaintiffs must be substantially the same data as that which has been reviewed by the defendants’ own experts. If not then the plaintiff and defendant experts are being asked to draw conclusions based on different information.
    • The forensic continuity of the data must be demonstrable such that any issues about authenticity or accuracy can be readily answered.
    • The process of redaction must not leave the data less meaningful or useful. While the exact birth-dates and initials of the patients may not be necessary to analysis of data, it will for example be critical that data attributable to specific patients can still be tracked and where there are associated slides or tissue samples or other medical records produced in the litigation this can be matched to the data in the same way as previous to the redaction.
    • The process of redaction must not unduly delay production.

    Master MacLeod held that the current manner of production did not meet the criteria. In particular, he took exception to the fact that the defendants’ experts were apparently working with original and unredacted data, which he said could put the plaintiffs at a disadvantage. The defendants’ use of unredacted information may also have led him to conclude that patient privacy, while warranting protection, may ultimately need to yield to “the imperative of justice.”

    Master MacLeod’s order was limited in that it merely established a process and criteria to allow the e-discovery to proceed. The key part of the order, for example, read:

    In the event the data cannot be produced in redacted form in a timely fashion or if the redactions can be shown to compromise the integrity of the data or if the redacted data is significantly different than the data available to the defence experts, the plaintiff expert is to be given access to complete and accurate copies of the 28 data freezes as well as a current set of data.

    There are other aspects of the order that are of significance. For example, Master MacLeod reasoned that the POP database (being potentially controlled by a non-resident) was analogous to deleted or residual electronically stored information as that term is used in Sedona Canada Principle 6. He said, “Only if [the plaintiffs] cannot answer the questions accurately and there remain important unexplained anomalies in the AVERT data should it be necessary to consider production of the POP database.”

    For more on the Sedona Conference‘s Sedona Canada Principles and for a summary of Master MacLeod’s 2006 order in this same case, see the LexUM E-Discovery Canada website.

    Andersen v. St. Jude Medical Inc., [2008] O.J. No. 430 (QL) (S.C.J.).

    Information Roundup – February 18, 2008

    Second weekend out of the water in a row, and I’m feeling a little on edge. Today would otherwise be a surfing day but there’s some ice build-up along the shore that causes too much backwash to warrant getting in the water. March typically brings blue skies and calm winds for great paddles though, and its just around the corner.

    Here is what I got into this week that you may find interesting.

    • Al Baker and Amanda Hartocollis, Confidentiality Hinders Police in Therapist’s Killing. Ought law enforcement officials be given a broad production order to search patient records as part of a care giver’s murder investigation? That’s the issue raised in this news story. (New York Times)
    • Law in Action, Justice Scalia in uncompromising form. I think the Scalia BBC interview will be one of the most interesting legal podcasts in 2008. If you’re having problems downloading from this link, it’s also on iTunes right here. (BBC News)
    • L.A. Theatre Works, Top Secret: The battle for the Pentagon Papers (Panel Discussion). This is a great podcast on iTunes U. The panelists (Pamela Karlan and Philip Tubman with moderator Alan Acosta) reflect on the Pentagon Papers affair as well as how the tension between freedom of the press and government secrecy is playing out today.
    • Alex Cameron and Julie DesBrisay, Privacy-based Limits in Litigation and Electronic Discovery. An overview of the relevant Canadian law. (Canada Bar Association)
    • Ralph Losey, When and why should you start an e-discovery team? Mr. Losey directs this question to in-house counsel. He suggests that organizations should rely on intact teams and established processes rather than exposing themselves to the bumps that can happen when e-discovery is handed over to the litigation firm that’s brought in on a specific matter. A significant thought for those inside and outside of law firms who care about e-discovery as a business market.

    Of course, there have been a number of violent incidents at American schools in the past couple weeks, including a shooting this week at Northern Illinois University. Thus far, it looks like the Northern Illinois event raises issues about plant/physical security and gun control rather than managing students at risk, but it’s probably a good time to re-link to my and my colleague Catherine Peters’s perspective on the latter issue. We published this short client update after Virginia Tech, and since then have been given some opportunity to provide guidance to colleges and universities as they work on managing privacy compliance issues so they don’t impede the development of protective threat assessment and management systems. It’s been good to work on a subject so important, but I’m nonetheless saddened and concerned by the recent events.

    [Thanks to “Steve” for the tip on linking to iTunes.]

    Case Report – ABCA addresses investigatory remedy for anonymous internet use

    Norwich Pharmacal orders, also called “equitable bills of discovery,” enable a person to conduct pre-action discovery against a third-party who is likely to have important information about a bona fide wrongdoing. The development of the Canadian standard for these and similar third-party orders is of high relevance today because they are a potential means of investigating and pursuing claims based on anonymous internet use.

    On February 12th, the Alberta Court of Appeal dismissed an appeal arguing for a Norwich Pharmacal order brought by an organization that had sued its former chief executive officer for fraud and sought information from the bank accounts of various third-parties (presumably to whom payments were made).

    The judgement is not particularly principled. The Court ultimately dismissed the appeal because the appellant had not proven the order was necessary, but did not opine in detail on the standard of proof. It did, however, say this about the “innocent bystander” requirement:

    While the party sought to be discovered must be more than a mere witness or bystander to the wrongdoing, it is not necessary that the party be, or be suspected to be, guilty of or privy to “wrongdoing” before a Norwich order is granted against it. The reality is that commercial and financial frauds, not to mention, breaches of trust and fiduciary duty, not infrequently involve the use of innocent parties such as financial institutions. Whether a wrongdoer uses a financial institution for the purpose of laundering money, impeding efforts to trace monies secured in breach of trust or through fraud, receiving secret payments in return for improper actions or simply as a vehicle in which to park ill-gotten gains does not really matter. If the reach of the Norwich order only applied to those complicit in a wrongdoer’s actions, then a wrongdoer could easily cover up financial misdeeds by the simple expedient of using innocent financial institutions. Thus, we do not agree that financial institutions used by alleged wrongdoers are necessarily “mere witnesses” who cannot be the subject of a Norwich order. However, if there is to be a Norwich order against third parties, there must be a bona fide claim of wrongdoing to which the third parties are somehow connected, innocently or otherwise.

    The leading case in Canada remains the Federal Court of Appeal’s 2005 decision in BMG Canada Inc. v. Doe, an intellectual property infringement case in which the Court detailed the factors to be considered in balancing the public interest in the effective administration of justice against individual privacy rights.

    A. B. v. C. D., 2008 ABCA 51 (CanLII).

    Case Report – FCA raises the question of mixed personal information under PIPEDA

    On February 1, the Federal Court of Appeal ordered a matter back to the Privacy Commissioner so that she could determine what parts of notes taken by a doctor in the course of providing an independent medical examination were the examination subject’s personal information.

    The dispute arose under PIPEDA, and was about access to information in notes taken by a doctor in the course of providing an IME. The most significant part of the decision is the Court’s response to the doctor’s argument that the information in his working notes was not the subject’s personal information. The Court said:

    Mr. Rousseau has a right of access to the information he gave the doctor, and to the final opinion of the doctor in the form of the report to the insurer. In accordance with Principle 4.9.1. of Schedule I to the PIPED Act, this enables Mr. Rousseau to correct any mistakes in the information he gave the doctor or which the doctor noted, as well as any mistakes in the doctor’s reasoned final opinion about his medical condition. But the process of getting to that final opinion from the initial personal information of Mr. Rousseau belongs to the doctor.

    This Court, in Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration) [in a decision under the Access to Information Act], has recognized that “the same information can be “personal” to more than one individual” (at para. 15). It may well be, in the end, that some information in the notes will be personal to both Mr. Rousseau and Dr. Wyndowe. A balancing exercise similar to that proposed in our ruling in Canada (Information Commissioner) would then need to be performed.

    I believe this is the first time that a court has considered the matter of access to “mixed” personal information under PIPEDA. Mixed personal information is personal information about more than one person, and can be difficult to deal with in an access request. It is often created in the course of investigations where a person who is interviewed gives an opinion or recounts facts about another.

    The Court did not mention section 9(1) of PIPEDA, which reads, “Despite clause 4.9 of Schedule 1, an organization shall not give an individual access to personal information if doing so would likely reveal personal information about a third party.” It also mentioned the issue of “work product” information earlier in the award, but did not address whether the doctor’s working notes were likely to speak about him in his professional rather than personal capacity and, hence, be work product rather than personal information. Given these limitations, the award speaks more about things to come than lay down any authority on the meaning of personal information.

    Other parts of the award are interesting if not notable. For example, I believe it contains the most detailed discussion by a court about the meaning of “in the course of commercial activity,” the key trigger language for the application of the Act.

    Wyndowe v. Rousseau, 2008 FCA 89 (CanLII).