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
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)
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
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? Pre-litigation? Relevance/redaction? What is “personal information”?
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: Privacy
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.
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.
Datatreasury Corporation v. Royal Bank of Canada, 2008 FC 955
Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219
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 6
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 8
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 8
A subpoena duces tecum is not the same as a legal requirement to produce
A power to inquire is not the same as a power to compel – e.g., CAS powers
Sensitive discreet PI in otherwise producible records – e.g., DOB, SIN, credit card #s
Receiving party takes information pursuant to an undertaking not to use for collateral purpose. But what about information security?
Questions? Alex Cameron firstname.lastname@example.org twitter @a_cameron http://www.fasken.com/acameron Daniel Michaluk email@example.com twitter @danmichaluk http://danmichaluk.wordpress.com
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