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Amcto presentation final



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  • 1. Sedona Canada Principles ofE-Discovery and Privacy Protection
    Municipal Information Access & Privacy Forum
    Developing a Culture of Access & Privacy in Ontario’s Municipalities
    October 18, 2011
    Alex Cameron
    Fasken Martineau LLP
    Dan Michaluk
    Hicks Morley
  • 2. Overview
    • Privacy and e-discovery
    • 3. Sedona Canada
    • 4. Pre-litigation
    • 5. Discovery
  • Privacy and e-discovery
    “e-discovery refers to discovery in civil litigation which deals with the exchange of information in electronic format (often referred to as Electronically Stored Information or ESI). Usually (but not always) a digital forensics analysis is performed to recover evidence. A wider array of people are involved in eDiscovery (for example, forensic investigators, lawyers and IT managers) ....
    Data is identified as relevant by attorneys and placed on legal hold. Evidence is then extracted and analysed using digital forensic procedures, it is usually converted into PDF or TIFF form for use in court.” (wikipedia)
  • 6. Privacy and e-discovery
    Longstanding tension between privacy rights and the need for full disclosure in litigation
    Scope of implied consent?
    Privacy issues arising with increasing frequency in e-discovery context
    Proliferation of electronic information
    E-discovery requires the gathering and processing of irrelevant records
    Blurring between business and personal purposes
    Non-party, internet and social media issues
  • 7. Privacy and e-discovery
    FIPPA (s. 64) & MFIPPA (s. 51)
    These laws expressly state that they do not limit the information otherwise available by law to a party in litigation
    Does that mean that privacy restrictions are irrelevant?
    What is “personal information”?
  • 8. Sedona Canada
    The Sedona Canada Principles Addressing Electronic Discovery
    Ontario Rules of Civil Procedure
    The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery (Public Comment)
    The Sedona Canada Commentary on Practical Approaches for Cost Containment
    Other commentaries to come:
  • 9. Sedona Canada Principles
    2. In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account … (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.
    Non-monetary costs and other factors may include possible invasion of individual privacy as well as the risks to legal confidences and privileges.
  • 10. Sedona Canada Principles
    • 9. During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect privileges, privacy, trade secrets and other confidential information relating to the production of electronic documents and data.
    • 11. Datatreasury Corporation v. Royal Bank of Canada, 2008 FC 955
    • 12. Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219
  • 13. Pre-litigation
    • Access to employee stored communications
    A labour-relations issue given the employment exclusion and litigation caveat
    The case law is very management friendly
    But expectations are rising
    Best practices
    Make personal use conditional on employer rights
    Put controls on the right of audit and investigation
    Consider express reference to e-discovery and e-FOI
  • 14. Pre-litigation
    • The impact of City of Ottawa
    About public right of access to personal e-mails
    Not about government’s access to stored communications on its systems
    Not about “custody or control” under civil rules
    Raises questions though
    FOI coordinators should think about managing expectations
    Next case – University of Alberta
  • 15. Pre-litigation
    • The impact of R. v. Cole
    The sky is not falling
    Privacy expectation precluded collection by the police
    Court recognized an implied management right (given a gap in policy)
    Does highlight the need for proportional steps in accessing stored information on employer systems
  • 16. Pre-litigation
    • Vendors may extract, process and review docs
    • 17. Over-collection will be “necessary” to conduct e-discovery
    • 18. But this is an outsourcing/data security issue – apply due diligence
    • 19. Are retainers through external counsel exposing your institution to risk?
  • 20. Pre-litigation
    Regulation of surveillance
    Necessary for its purpose?
    Limit collection (especially of third parties)
    Common law tort?
    Watch for Jones v. Tsige (ONCA)
  • 21. Pre-litigation
    Social media issues
    What is in the user’s control vs. non-party social media service?
    Public vs. private pages
  • 22. Discovery
    • Your institution’s lawyers need documentation to prepare, but for sensitive docs…
    • 23. What’s really necessary for preparation?
    • 24. Should identifiers should be redacted?
    • 25. Should security expectations be express?
  • Discovery
    • Producing party traps
    • 26. A subpoena duces tecum is not the same as a legal requirement to produce
    • 27. A power to inquire is not the same as a power to compel – e.g., CAS powers
    • 28. Sensitive discreet PI in otherwise producible records – e.g., DOB, SIN, credit card #s
    • 29. Receiving party takes information pursuant to an undertaking not to use for collateral purpose. But what about information security?
  • Questions?
    Alex Cameron
    twitter @a_cameron
    Daniel Michaluk
    twitter @danmichaluk
  • 30. Sedona Canada Principles in E-Discovery
    Municipal Information Access & Privacy Forum
    Developing a Culture of Access & Privacy in Ontario’s Municipalities
    October 18, 2011
    Alex Cameron
    Fasken Martineau LLP
    Dan Michaluk
    Hicks Morley