MT>3
  • Home
  • About
  • People
  • Services
    • e-Discovery
    • Managed Review
    • Information Governance
    • Due Diligence
  • Blog
  • News
  • Contact

Will the Nature of Electronic Information Justify an Anton Piller Order? Maybe not….

26/3/2014

 
While modern technology makes it easier for departing employees to misappropriate confidential information, that same technology can also prevent or detect and record misappropriation such that a court may deny an Anton Piller Order.

In 
Irving Shipbuilding Inc. v. Schmidt, [2014] O.J. No 1031, the court set aside an Anton Piller Order where the plaintiff could prove its case without using the “fruits of the search”.  Because of its data loss prevention system, the plaintiff knew exactly which electronic files the defendant had taken with him prior to the AP Order’s execution. The existence of this type of data loss prevention software was a critical piece of evidence that must always be disclosed by the moving party.  The plaintiff’s ability to prove its case without the fruits of the search meant that it had failed to establish either procedural or financial harm.

When analyzing the question of whether there is a risk of destruction, courts will consider the electronic format of the evidence and the ease with which it can be erased.  But, in this case, there was no real possibility that the defendant might destroy evidence before discovery.  To justify the “draconian” AP remedy, there must be a probable risk of destruction, not just a possible risk.

​Bottom line – tread carefully and consider whether the volatility of the electronic evidence in a particular case will justify, or prohibit, an Anton Piller Order.

Who Cares About Metadata??

19/3/2014

 
When metadata may contain relevant information, Canadian courts may well order its production.   InLaushway v. Messervey  [2014] N.S.J. No. 107, the court upheld a production order that compelled the plaintiff to produce his computer so that it could be forensically analyzed.  The Court of Appeal also found that there was nothing in the Nova Scotia Rules that limited the disclosure of metadata.  Metadata was producible and presumed to be “electronic information”.

As for the competing privacy rights of the defendant, the Court of Appeal found that they were protected by the terms and conditions of the production order.  That order contained specific directions as to matters that were to be excluded from the forensic expert’s report.  The court was satisfied that the metadata that showed the plaintiff’s active use of the computer (the issue in the litigation) could be compiled while protecting any private information and distinguishing any third-party use of the computer.

​It is encouraging to see Canadian courts balancing litigants’ competing interests in a way that permits proportionate disclosure while also protecting privacy interests.

New Comment on Proportionality

12/3/2014

 
If parties can’t agree on methods to make e-discovery proportionate and cost efficient, they risk having to produce all relevant documents, no matter the cost. In Cameco Corp. v. Canada 2014 T.C.J. No. 31.pdf, the Tax Court of Canada found that, despite the appellant having produced an enormous volume of ESI and spending huge resources in the process, there were deficiencies in the appellant’s production. Thus, “having agreed to conduct full disclosure”, the court ordered that the appellant provide all documents that were relevant and material to any matter in issue.

The court also took issue with the fact that the appellant had failed to identify the legal basis of redactions that it had made to the documents listed in its Schedule “A”. The appellant was ordered to do so, in addition to delivering a further and better affidavit of documents.

The respondent also argued that the appellant’s use of the metadata to describe the documents in its List of Documents was unsatisfactory because elements like the author and date in the description did not correspond directly to the author and date on the face of the document. The court agreed that it would be more helpful to only have the document identifier number and no author or date. In doing so, it held that as long as the appellant had provided sufficient description of the documents using a numerical identifier for each document, its identification of the document was satisfactory.

​Once again, our Courts endorse proportionality and openness in e-discovery.

<<Previous

    Categories

    All
    Artificial Intelligence
    Blockchain
    Cyber Security
    E Discovery
    Information Governance
    Legaltech
    Privacy
    Social Media
    Technology


    Archives

    November 2020
    October 2020
    July 2020
    June 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    May 2018
    April 2018
    March 2018
    September 2017
    August 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    November 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    April 2012
    March 2012
    February 2012
    January 2012
    December 2011
    November 2011
    October 2011
    September 2011
    August 2011
    June 2011
    April 2011
    March 2011
    February 2011
    January 2011
    December 2010
    November 2010
    October 2010
    September 2010
    August 2010
    July 2010
    June 2010
    May 2010
    March 2010
    February 2010
    January 2010
    October 2009
    September 2009
    August 2009
    December 2008
    March 2008
    November 2007
    October 2007

130 Adelaide Street West Suite 2020
Toronto, Ontario M5H 3P5
​ ​
t: 416-642-2220  
tf: 1-877-642-2220  
f: 416-642-9021

Contact MT>3
@MT>3 2018. All Rights Reserved
Picture

Privacy Policy and Terms of Use

  • Home
  • About
  • People
  • Services
    • e-Discovery
    • Managed Review
    • Information Governance
    • Due Diligence
  • Blog
  • News
  • Contact