Access to e-mails, text messages and other ESI

I did double-duty today, also presenting on issues relating to control of corporate information in light of business computing trends like BYOD and cloud computing at day one of Osgoode PDP’s e-discovery certificate program. My slides are below.

Justice David Brown and Master Calum McLeod have written a number of the judgements I’ve blogged about here. I was able to stay for their lunch presentations on addressing the e-discovery burden. Justice Brown warned of a coming apocalypse (death by seppuku, to be precise) unless something gives way to break the e-discovery burden, starting with adversarial behavior in the discovery process. Master McLeod delivered similar message, though more from his in the trenches perspective – noting the wisdom of including ADR mechanisms into discovery plans and bifurcated discovery. Take note.

Ontario decision deals with scope of litigation privilege, keyword searches and other e-discovery issues

On March 25th, the Ontario Superior Court of Justice issued a decision in which it held that that communications sent and received in order to build a public relations strategy ancillary to ongoing litigation were not subject to litigation privilege. Master McLeod stated:

I am not however persuaded that strategy associated with public relations, media relations or lobbying ancillary to litigation would or should be protected.  The notion of the adversarial advocate and the zone of privacy cannot be stretched so far as to protect the strategy of the party in the court of public opinion.

This is the most principled finding in a decision that also canvasses and provides helpful comment on a number of issues related to the production of e-mails. Master McLeod remarks, for example, that a search for documents containing keywords is a means of discovering relevant and privileged documents but does not “render the document automatically relevant” or “answer the question of privilege.”

Coincidentally, Craig Ball recently posted on the same issue in, “Are Documents Containing Agreed-Upon Keywords Responsive Per Se?” Ball urges counsel to address the  responding party’s access to responsive documents expressly in the discovery planning process. He also raises the motivation a party may have to demand a full set of responsive documents:

We may be gravitating to a place where counsel’s countermanding a machine’s “objective” characterization of a document as responsive will be viewed with suspicion. Responding parties see electronic culling as just an extension of counsel’s judgment; but, requesting parties often see electronic culling as an objective arbiter of responsiveness. Face it: requesting parties believe that opponents hide documents.

If you follow e-discovery developments, both this case and the Ball post are worth a good read.

Kaymar Rehabilitation v Champlain CCAC, 2013 ONSC 1754 (CanLII).

Recent OCA journalist-source case a “squeaker” with good statements of principle

The Court of Appeal for Ontario’s March 27th decision in 1654776 Ontario Limited v Stewart is a journalist-source privilege decision in which the Court made some significant statements of principle in protecting a journalist’s confidential sources.

The case is about whether the Court would reveal the identities of two insiders to the attempted takeover of BCE in 2008. The insiders provided information about the tenor of confidential negotiations to the Globe and Mail, who published the information and protected its sources. The plaintiff claimed the insiders breached the Securities Act by making false and materially misleading statements. He sought their identities, stressing that the insiders were not whistleblowers leaking information about wrongdoing and, rather, had merely given business information to a journalist and used the Globe to manipulate the markets.

Here are the statements of principle Justice Juriansz made on behalf of the Court:

  • It is an error of law to apply an elevated standard in the first step of the Norwich Pharmacal test because an expressive interest is involved; at the first step, an applicant must merely demonstrate a bona fide claim. This finding weighs against protection.
  • Courts should recognize that “generally” the relationship between a journalist and a confidential source should be “sedulously fostered”; concerns about the value of the specific source-journalist relationship at issue should be considered in weighing competing interests. This finding weighs in favour of protection.

On the facts, Justice Juriansz protected the sources, noting the case was “difficult.” The lack of evidence to support the plaintiff’s assertions was significant to Justice Juriansz as was the plaintiff’s alternative potential remedy against several corporate actors. Justice Juriansz did not devalue the journalist-source claim because the insiders were not whistleblowers; making information about the transaction available was in the public interest, he held. However, given the plaintiff’s attack on the quality of the sources’ information, Justice Juriansz held that the public’s right to know was a neutral factor in the circumstances. It seems, therefore, that if the plaintiff had a stronger factual basis for his claim lawsuit he would have prevailed in his quest to identify the anonymous sources.

1654776 Ontario Limited v Stewart, 2013 ONCA 184 (CanLII).

Alberta court finds that grievance response is privileged

On February 26 the Court of Queen’s Bench of Alberta held that an employer’s response to the first step meeting in a grievance procedure was subject to settlement privilege.

Communications made in a grievance meeting are customarily treated as subject to settlement privilege, but whether the privilege extends to an employer’s formal response to the meeting is questionable. Here, the Court treated the grievance response as part of the continuum of settlement communications. It said:

If these meetings are to be open in an attempt to resolve the grievance it seems clear that the discussions and documents flowing therefrom should remain confidential. The decision letter of April 30 is part of a settlement negotiation which falls within the protected category of settlement privilege and is not producible.

The Court also discussed the implied waiver doctrine and the principled exception to settlement privilege and found neither justified a production order in the circumstances.

Thomson v University of Alberta, 2013 ABQB 128 (CanLII).

Child porn files seized from work computer admissible

On March 6th, the British Columbia Court of Appeal held that an accused’s section 8 Charter rights were violated when his work computer was seized by the police without a warrant but allowed the admission of evidence from the computer because it would not bring the administration of justice into disrepute.

The case illustrates that the standard for finding an objective reasonable expectation of privacy on a work computer following the Supreme Court of Canada’s decision in R v Cole is very low. While the record in Cole weighed particularly in favor of  an expectation of privacy finding, in this more recent case, the were no special facts. The employee (a school principal), for example, only used his work computer for browsing the internet. The Court nonetheless recognized a Charter-protected privacy interest.

Unfortunately, as in Cole, the record in this case did not appear to support any discussion of whether the computer was networked or the impact of the employer’s control over its network.

For an essay on what Cole means for employers, click here.

R v McNeice, 2013 BCCA 98 (CanLII).

 

 

Court orders safekeeping of medical records held by departed employee

On March 7th, the Ontario Superior Court of Justice issued an order to secure medical records held by a former employee of an addiction clinic.

The employee had copies of urinalysis reports stored on her personal e-mail account at the time of termination because she had used her personal e-mail account for work purposes. She allegedly used her continuing possession of the e-mails to extort the employer into offering reinstatement and later refused to return the e-mails, arguing they were evidence of the employer’s wrongdoing. (It is not clear from the decision what wrongdoing the employee alleges.)

The Court granted an ex parte order after applying the test for an Anton Piller. Notably, the order required the employee to turn control of her e-mail account to an independent supervising solicitor authorized to copy and retain the e-mails, delete the e-mails on the account and return control of the account to the employee. The Court authorized the employer to serve the order by e-mail.

Garber v Robinson, 2013 ONSC 1427 (CanLII).

The science of breach prevention and the art of breach response

Data loss prevention and response is a big topic now! The HRSDC lost hard drive is about a huge (but seemingly benign) incident that has attracted great attention. We also have the Obama administration’s attention to corporate network security – such attention given at a time in which sacrifices are being made to corporate network security based on trends such as BYOD.

Here is a practical guide that we’ve prepared to address the salient issues. We hope it’s useful to you.

Union defames hospital administrator by publishing grievance, no privilege

On March 1st the Saskatchewan Court of Appeal held that a union and its representatives defamed the director of a teaching hospital by publishing a grievance that alleged he became “an active part of the harassment himself” by his handling of a harassment complaint against others.

The Court accepted that a publication by a union made for the purpose of “fair representation” (including for the purpose of locating witnesses for a pending arbitration) might attract qualified privilege, but held that the union went too far in the circumstances “having regard for the manner of communication, the wording of the communications, their timing and to whom they were given.” In particular, the Court held that the union could not satisfy the “reciprocity of interests” element of the qualified privilege defence because it published the grievance on the open internet. It explained:

The trial judge did address the question of publishing in relation to the internet (at para. 78), but he dismissed this aspect of the complaint by finding in effect that the use of the internet is a fact of life. As Brown on Defamation states “[t]he use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information” (at 13.6(3)(d)(ii)(C), vol. 4). The internet is not a tool that can be used to expand qualified privilege so as to justify the broad publication of a defamatory statement, but rather it exacerbates the libel. In this case, it is common ground that the Union’s website was open to the public on the internet, without any access code protections or other privacy protections. Anyone with internet access could gain access to it. It is irrelevant, in my view, that Dr. Rubin did not present any evidence to the Court to prove that anyone did in fact search the internet to find the communication.

Also notably, the Court awarded $100,000 in general damages, which the court characterized as just shy of an amount that might be awarded for “extreme and egregious conduct.” It declined to award aggravated or punitive damages.

Rubin v Ross, 2013 SKCA 21 (CanLII).

Court orders theraputic records to be returned to their maker despite privacy claim

On March 8th the Ontario Superior Court of Justice ordered the return of therapeutic records allegedly obtained through fraudulent means despite an argument that such return would cause harm to the individuals to whom the records related.

The records were created by a psychotherapist and hypnotist alleged to have held himself out as a medical doctor. He took notes of sessions with a number of complainants that the police seized but that were no longer needed for investigation or for trial. The Crown asked the Court to hold the return of the records based on section 37 of the Canada Evidence Act because returning the records would, “encroach upon a specific public interest and privacy concern of the alleged victims of this fraudulent conduct.”

The Court dismissed the Crown’s application, questioning whether a privilege or privacy claim could apply to information known by the accused and records created by the accused. It said:

In my view, s. 37 of the Evidence Act does not apply to the facts of this case. The seized notes and records belong to the respondent and should be returned to him. I agree with Mr. Chambers’ submission that s. 37 is intended to apply where an accused seeks disclosure of of records or information generated by the state and its agents or through the interaction between complainants and third parties, which have never been in the accused possession.

R v Kent, [2013] O.J. No. 1037 (SCJ) (QL).