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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 E discovery production and non-party privacy v2 Presentation Transcript

    • E-Discovery, Production and Non-Party Privacy
      Dan Michaluk
      CBALeal Conference and ExpoAugust 16, 2011
    • Outline
      Objective – to identify and characterize key issues
      Harvesting from corporate systems
      Use of e-discovery vendors
      Production and preparation
    • 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
    • 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
    • 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)
    • 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
    • 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
    • Use of E-Discovery Vendors
      E-Discovery is a vendors game
      Computer forensics
      E-discovery consultants
      Litigation support/e-discovery vendors
    • 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
    • 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
    • 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?
    • 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
    • Production and 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?
    • E-Discovery, Production and Non-Party Privacy
      Dan Michaluk
      CBA Leal Conference and ExpoAugust 16, 2011