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

1. 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

3. Sedona Canada

4. Pre-litigation

6. 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

7. 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?

8. 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

9. 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.

11. Datatreasury Corporation v. Royal Bank of Canada, 2008 FC 955

12. Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 2192

16. Over-collection will be “necessary” to conduct e-discovery

17. But this is an outsourcing/data security issue – apply due diligence

18. Are retainers through external counsel exposing your institution to risk?11

19. 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

20. 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

22. What’s really necessary for preparation?

23. Should identifiers should be redacted?

25. A subpoena ducestecumis not the same as a legal requirement to produce

26. A power to ask is not the same as a power to compel – e.g., CAS powers

27. Sensitive discreet PI in otherwise producible records – e.g., DOB, SIN, credit card #s

29. “Not admissible in evidence” in civil proceedings and witness can’t be compelled to testify to content

30. Admissibility is a different concept than production

31. Arbitrators have been unwilling to read the bar to admissibility as a bar to production

32. Though they have created a balancing test

34. 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