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