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E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
E discovery production and non-party privacy v2
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E discovery production and non-party privacy v2

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  • 1. E-Discovery, Production and Non-Party Privacy
    Dan Michaluk
    CBALeal Conference and ExpoAugust 16, 2011
  • 2. Outline
    Objective – to identify and characterize key issues
    Outline
    Groundwork
    Harvesting from corporate systems
    Use of e-discovery vendors
    Production and preparation
  • 3. Groundwork
    What is E-Discovery?
    Identification, preservation, processing and production of records in electronic form
    Involves processing of entire data sets to separate producible from private
  • 4. Groundwork
    What’s the real privacy concern about?
    Can be about privacy between the parties
    There is a tension in the law here that will play itself out over the very long-term, but full production is the norm
    The conduct of surveillance can be a regulatory compliance issue, but PIPEDA jurisdiction is limited by State Farm
  • 5. Groundwork
    What’s the real privacy concern about?
    There are important practice issues dealing with the affect the production process may have on non-parties due to
    Processing of irrelevant records
    Production of non-party personal information
    Data security (including use of service providers)
  • 6. Harvesting From Corporate Systems
    Access to employee personal communications
    All e-mails must be “harvested” to do e-discovery
    Counsel and client sometimes face great resistance
    Employers have a recognized property right, even after the Ont. C.A. decision in R. v. Cole
    Beware of regulatory concerns for federal employers and employers in BC, Alberta and Quebec
    But PIPEDA application is questionable given Johnson v. Bell Canada
  • 7. Harvesting From Corporate Systems
    Best practices to facilitate good harvesting
    Go beyond “no expectation of privacy” statement
    Make personal use conditional on employer rights (set expectations right to the top of the organization)
    Articulate your purposes
    Audit and investigate
    Engage in e-discovery
    Establish controls to ensure access is legitimate
  • 8. Use of E-Discovery Vendors
    E-Discovery is a vendors game
    Computer forensics
    E-discovery consultants
    Litigation support/e-discovery vendors
  • 9. Use of E-Discovery Vendors
    Are your clients in custody of personal information that is regulated?
    If so, they are accountable for data security
    It may be reasonable for them to trust counsel without a concerted effort at due diligence, but can they simply trust referred vendors?
    What should client-oriented counsel be prepared to offer to give clients comfort
  • 10. Production and Preparation Issues
    Producing party traps
    A subpoena ducestecumis not the same as a legal requirement to produce
    A power to ask is not the same as a power to compel
    Privacy statutes can serve to block disclosure of PI outside of a defined jurisdiction
  • 11. Production and Preparation
    Producing party traps (con’t)
    Sensitive discrete PI in otherwise producible records – e.g. DOB, SIN, credit card #s
    Receiving party takes information pursuant to an undertaking not to use it for a collateral purpose, but what about information security?
  • 12. Production and Preparation
    Third-party notice
    Who’s looking out for the non-parties?
    Consider if the consent order will be blocked by a privacy sensitive judge - see Bernanrd, FCA
    Consider whether the burden of non-party notification can be used as a tactic – see Angel Acres, BCCA
  • 13. Production and Preparation
    Preparation
    Lawyers have a very legitimate need to review documentation in preparing for their representative role, but for sensitive docs…
    What’s really necessary?
    Should identifying information be redacted?
    Should security expectations be express?
  • 14. E-Discovery, Production and Non-Party Privacy
    Dan Michaluk
    CBA Leal Conference and ExpoAugust 16, 2011

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