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The Sedona Canada Panel on Privacy and E-Discovery
 

The Sedona Canada Panel on Privacy and E-Discovery

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This is a 45 minute presentation to Ontario access and privacy professionals about privacy and e-discovery.

This is a 45 minute presentation to Ontario access and privacy professionals about privacy and e-discovery.

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    The Sedona Canada Panel on Privacy and E-Discovery The Sedona Canada Panel on Privacy and E-Discovery Presentation Transcript

    • The Sedona Canada Panel on Privacy and E-Discovery
      Information Management Access Privacy Symposium
      March 11, 2011
      Alex Cameron
      Fasken Martineau LLP
      Dan Michaluk
      Hicks Morley
    • Overview
      • Privacy and e-discovery
      • Sedona Canada
      • Pre-litigation
      • 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)
    • Privacy and e-discovery
      Longstanding tension between privacy rights and the need for full disclosure in litigation
      Privacy issues arising with increasing frequency in e-discovery context
      Proliferation of electronic information
      E-discovery requires the gathering and processing of irrelevant records
      Devices and services used for 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?
    • 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)
      Other commentaries to come:
      Privacy
      Cost containment
    • 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 include possible invasion of individual privacy as well as the risks to legal confidences and privileges.
    • 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.
      • Datatreasury Corporation v. Royal Bank of Canada, 2008 FC 955
      • Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219
      2
    • 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
      6
    • 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
      8
    • Pre-litigation
      • Vendors may extract, process and review docs
      • Over-collection will be “necessary” to conduct e-discovery
      • But this is an outsourcing/data security issue – apply due diligence
      • Are retainers through external counsel exposing your institution to risk?
      11
    • Pre-litigation
      Regulation of surveillance
      Necessary for its purpose?
      Limit collection (especially of third parties)
      Beware common law tort
      Somwar v. McDonalds
      Shred-Tech v. Viveen
    • Pre-litigation
      Social media issues
      What is in the user’s control vs. non-party social media service?
      Public vs. private pages
      Leduc v. Roman
      Schuster v. Royal & Sun Alliance Insurance Company of Canada
    • Discovery
      • Your institution’s lawyers need documentation to prepare, but for sensitive docs…
      • What’s really necessary for preparation?
      • Should identifiers should be redacted?
      • Should security expectations be express?
    • Discovery
      • 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 – 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?
    • Discovery
      • Production and the Ontario Student Record
      • “Not admissible in evidence” in civil proceedings and witness can’t be compelled to testify to content
      • Admissibility is a different concept than production
      • Arbitrators have been unwilling to read the bar to admissibility as a bar to production
      • Though they have created a balancing test
      • Is this open to challenge given Middleton v. Sun Media Corp., where Div. Ct. held that “not admissible” means “not capable of use” under the RHPA?
    • Questions?
      Alex Cameron
      acameron@fasken.com
      twitter @a_cameron
      http://www.fasken.com/acameron
      Daniel Michaluk
      daniel-michaluk@hicksmorley.com
      twitter @danmichaluk
      http://danmichaluk.wordpress.com
    • The Sedona Canada Panel on Privacy and E-Discovery
      Information Management Access Privacy Symposium
      March 11, 2011
      Alex Cameron
      Fasken Martineau LLP
      Dan Michaluk
      Hicks Morley