The New Nightmare Discovery of Electronic Information in Civil Litigation

Transcription

1 The New Nightmare Discovery of Electronic Information in Civil Litigation Presented to: CURIE Presented by: Thomas Donnelly, Thomas Gold Pettingill Presented on: September 13th, 2009

2 Surprise! An unexpected letter Preserve all of your electronic documents

3 Counsel s Preservation Wish List 1. All s, including message contents and logs of usage; 2. All databases and spreadsheets; 3. All electronic calendars; 4. All voic s; 5. All storage devices including computers and mini-computers; 6. All back-up and archives, including floppy disks from 1989; 7. Log all the changes you make to documents and save copies of each draft.

4 Ignorance is not Bliss You roll your eyes and ignore the letter But beware of Zubulake Employee discrimination case jury instructed to assume that some unpreserved and unrecoverable s would have harmed the defendant s case $29,200,000 USD was awarded

5 What are E-Documents? Documents that are electronically stored and read with an electronic device These documents are caught in the discovery net Ontario, for example, defines document as including data and information in electronic form

6 E-Document Challenges Extremely voluminous and duplicative Easy to disperse, difficult to track Virtual workgroups Metadata, known as data about data Inadvertent destruction

7 Rules to Address E-Discovery Provinces have been slow to change rules Nova Scotia is the only province to have a rule to address e- discovery: Rule 16 Other jurisdictions have instituted guidelines and practice directions British Columbia s Supreme Court Practice Direction re: Electronic Evidence Alberta s Civil Practice Note No. 14 Guidelines for the use of Technology in any Civil Litigation Matter Ontario s Guidelines for the Discovery of Electronic Documents in Ontario

8 Introducing the Sedona Principles The Sedona Canada Principles Addressing Electronic Discovery A group of lawyers, judges and technologists met to grapple with the phenomenon of electronic discovery They grappled in Mont Tremblant in May 2006 Result: first edition was finalized in January 2008 The documents consists of 12 principles and associated commentary

9 Sedona the Authoritative Guide Nationwide guidance on e-discovery Principles are compatible with the discovery rules in all Canadian jurisdictions. Met with approval by the courts in the 2008 decisions of: Innovative Health Group Inc v. the Calgary Health Region (Alberta Court of Appeal) Vector Transportation Services Inc. v. Traffic Tech Inc. (Ontario Superior Court of Justice)

10 Document Retention Policy Moezzam Saeed Alvi v. YM Inc. (Sales) (2003): a properly run company should have a documents retention policy Policy should address retention, destruction, creation, and storage of documents

11 Document Destruction The document retention policy should also consider how long documents should be stored before destruction: Refer to limitation period in your jurisdiction Note other statutory requirements for the certain documents Counsel can assist During a litigation hold, have a procedure for suspending document destruction

12 Advantages of Document Retention Policy Save time and money if there is litigation in the future Ability to respond confidently to e-discovery requests Enhances consistency through personnel turnover Eases locating records

13 Spoliation Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation Cheung v. Toyota (2003) Sedona Principle 11: sanctions for failure to preserve, collect, review, or produce e-documents. However, sanctions can be avoided if one demonstrates failure was not intentional or reckless. Document retention policy assists in respond to allegation of spoliation

14 Litigation Hold Where litigation is threatened or pending, institute a litigation hold Litigation hold does not equal document retention Require a special procedure for preserving relevant documents

15 Preservation Response Collect document retention policy Instruct key players to cease destruction Make back-ups that store relevant documents Suspend practice that modifies relevant documents Engage third party IT experts to capture the relevant data Continue dealing with non-relevant documents under the document retention policy

16 The Filing Cabinet A computer hard drive is like a filing cabinet (Northwest Mettech v. Metcon, 1996) This analogy is often cited in e-discovery matters Do not need to manually search through all s at $2 a piece Develop search terms Confer with opposing counsel Sedona Principle #4 and #8: meet early and often regarding identification, preservation, collection, review, production and format of electronically stored information

17 Defend your search If agreement is not reached, be prepared to defend (or challenge) the search terms in court Shell Canada Limited v. Superior Plus Inc., (2007 Alta.): Counsel did not confer to agree on search terms This was regrettable Court found a presumption in favour of the production being complete. Alleged defects in search terms were not put to the responding party in cross-examination on affidavit. No expert evidence was adduced on adequacy of search terms Sedona Principle #7

18 Proportionality Ontario Rules of Civil Procedure: "These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. British Columbia Practice Direction: scope of discovery may be modified to reflect the circumstances of the particular case Sedona principle #2: the rule of proportionality a reaction to delays and costs impeding access to justice

19 Case law examples of Proportionality Dulong v. Consumers Packaging Inc., [2000] O.J. No. 161 (Master) a broad request that the corporate defendant search its entire computer systems for relating to matters in issue in the litigation was properly refused on the grounds that such an undertaking would, "having regard to the extent of the defendant's business operations, be such a massive undertaking as to be oppressive Innovative Health Group Inc. v. Calgary Health Region (2008) (A.B.C.A) How much discovery is enough Court refers to Sedona Principle #2

20 What to do with the Hits Once you have: Found the key players Settled on search terms Collected documents with the search terms Review the documents Produce those that are relevant and not privileged Consider the proper form of production Must metadata be preserved? Does a hard copy suffice?

21 Privilege You have narrowed in on the relevant documents Documents must be manually reviewed for privilege (Air Canada v. Westjet) Beware of Metcalfe v. Metcalfe Consider clawback agreements

22 Costs Sedona Principle #12: Costs generally borne by the producing party Cost shifting typically occurs at the end of litigation Where a producing party must go through extraordinary efforts, a different cost allocation may be appropriate

23 Costs case law example Barker v. Barker (2007) (ON S.C.J.) Claims were related to treatment received at maximum security mental health centre Voluminous documents were relevant: 381 three-inch volumes containing between 50,000 and 100,000 largely double-sided documents Documents to be scanned and coded Cost between $160,000 - $383,000 Defendants seek order that 1/3 of costs are payable by plaintiffs Court noted the very substantial continuing benefits to the plaintiffs and the court that are likely to be obtained from the conversion of the defendants productions into electronic form This benefit justified the defendants motion

24 Summary Develop a document retention policy Institute a litigation hold when litigation is threatened Meet early and often with opposing counsel Develop search terms Collect relevant documents Search manually for privilege Produce the documents

25 CROSS-COUNTRY LITIGATION UPDATE Presented to: CURIE AGM Presented by: Alexander Pettingill, Thomas Gold Pettingill Presented on: September 13th, 2009

26 Personal Injury Slip and Falls Review contracts with service providers Maintenance Review your inspection/maintenance policy Sports Injuries Do you have qualified/certified coaches?

27 Personal Injury (cont d) Alcohol - Campus Pubs and Restaurants Ensure all servers have SIP certification Ensure Management familiar with Liquor Control Act

28 Educational Malpractice Failure to Educate Professor/Student Relationship Checks and balances on Professor s control over student Failure to Provide Academic Accommodation Enlist assistance of professionals

29 Educational Malpractice (cont d) Administrative Student Calendars/Literature sent to students Audit re. course requirements, program availability, etc. References to Licensing Bodies Should be peer-reviewed Obligation to Provide Marks/Transcripts Make sure you follow your own Policies

30 Outside Rotations/Malpractice Medical Students Midwifes Written agreements with professional organizations Duty to report vs. Personal Health Information Protection Act Dental students Campus Dental Clinics What hat are they wearing?

31 Campus Security Investigation, Arrest and Imprisonment Officer must have contemporaneous, detailed notes Jurisdiction of Campus Police Ensure officers familiar with jurisdictional issues Racial Profiling Training, Awareness, Policy

32 Defamation Lectures/Publications Academic Freedom vs. Libel and Slander Act University web site, Web pages and Blogs In what capacity are people communicating?

33 Defamation (cont d) Presentations Be alert to use of private information Personal Health Information Protection Act Internal Investigations Do not dance to lawyer s tune

34 Unique Students Vexatious Litigants The Armenian Conspiracy Pot smoke being pumped into Dorm room Controlled by electronic chip secretly planted in brain

35 Trends From The U.S. Student suicides Claims related to criminal conduct of students Campus shootings Breach of Licensing Agreements Particularly relating to internet use

36 Campus Security Issues - Lessons from Small v. UWO Presented to: CURIE AGM Presented by: Ian Gold Thomas Gold Pettingill Presented on: September 13th, 2009

37 Overview of Presentation Background of Case Why Issues in This Case are Important Jurisdiction of Campus Police Racial Profiling Issues Other Lessons

38 Background of Case Causes of action Evening of altercation Campus police investigation Arrest and imprisonment Outcome of charges

39 Why Issues in This Case are Important Supreme Court of Canada decision in 2007 re police negligence Expands focus of Court inquiry into police actions Reasonable grounds test still stands Now also have to show met standard of reasonable police officer in circumstances

40 Why Issues in This Case are Important To be determined Move away from malicious prosecution because of difficulties with proof Whether standard of campus police different from city/provincial police

41 Jurisdiction of Campus Police Limited in geographic area but generally have same powers and duties as city/provincial police officer Powers and duties derived by statute and by private contract Risk Management Issue: place of arrest (competing goals of deterrence, safety and risk avoidance)

42 Racial Profiling Issues Potential areas for liability Failure to train / promote awareness of issue/ have comprehensive policy Vicarious liability for remarks and actions of campus police officers

43 Racial Profiling Issues Risk Management Issues Ensure adequate procedures are in place to train campus police officers on anti-discrimination and racial profiling issues Ensure adequate anti-discrimination policies are in place and that policies specifically address bias and profiling issues Post Anti-Discrimination Policies and Procedures and Definition of Racial Profiling in Campus Police Office Have racial profiling literature available and ongoing CLE for officers Ensure that procedure is in place for students who wish to pursue discrimination complaints relating to university personnel, including campus police, and have the complaint procedure accessible to students

44 Other Lessons What to do when a complaint is withdrawn? Ensure adequate follow-up with student Offer support to student / promote available counselling services

45 Other Lessons When is there a duty to continue investigation? Duty provided by legislation or by contract / internal policy

46 Other Lessons Involvement of alcohol Ensure smart serve certification and/or other proper training

47 Other Lessons What other evidence can hurt or help? Officers log book notes Occurrence Report Ensure contemporaneous detailed notes of investigation and documentation of all investigative steps taken Ensure notes have objective tone Consultation with specialist if available