​Escalating volumes of electronic information increase the risk of inadvertent disclosure of privileged and personal information. Thematically, Day Two covered the risks of this type of disclosure, and the best practices to implement to avoid these risks. Good information management is essential for protecting of privileged and personal information.

The highlight of the day was the keynote speaker, Dr. Anne Cavoukian, Information and Privacy Commissioner of Ontario. It was a privilege have Dr. Cavoukian attend this inaugural course to speak about the future of privacy in Canada and around the world. She is a passionate speaker who is a fierce advocate for the protection of individual privacy rights.

During her address, Dr. Cavoukian outlined the benefits of Privacy By Design. Her view is that to be effective privacy considerations need to be the default setting, embedded in systems from the beginning, rather than an afterthought. Other foundational principles of this approach to privacy include: emphasizing prevention over remedial actions, full lifecycle protection, transparency and a user-centric approach.

Dr. Cavoukain also emphasized the need to change the current privacy paradigm from a Zero Sum model (one example of which is the assumption that an increase in police protection will cause a corresponding decline in personal privacy) to a Positive Sum model. The Positive Sum Privacy Model creates win-win scenarios instead of either/or scenarios which involve unnecessary trade-offs.

​Course attendees left Day Two with an enlightened view of individual privacy rights. They went home armed with questions to ask the next time they are asked to provide personal information to an organization, and definitely ready to encrypt their personal data.

Some themes and highlights from Day One of this inaugural course:

• Culture Shifts Required: with the costs of litigation (and volumes of data) continuing to escalate, a notable culture shift is required in the legal profession if litigation is going to survive. Master Calum MacLeod and Justice David Brown emphasized the need for counsel and clients to approach litigation in a cost-effective manner. Other sessions endorsed cultural shifts in the approach to managing records, and to understanding and applying technology.
• If You Cannot Beat Them, Join Them: how to navigate the world of personal user accounts, BYOD (Bring Your Own Device), social media and The Cloud. The key, according to Dan Michaluk (and we agree), is the implementation of clear policy language.
• The Cure for What Ails Discovery and Numerous Other Business Issues: good information management policies and protocols can keep the costs of e-discovery down. Susan Nickle and Sheila Taylor confirmed that there are compelling business and legal cases for all organizations to implement good information management principles – now.
• Lawyers and Technology (Not Oil and Water Anymore): even legal professionals must develop at least a basic understanding of information technology, network systems, and basic IT terminology. Thanks to Jim Swanson and Kevin Lo for helping us navigate these (often muddy and acronym-filled) waters.

Look out for the Highlights from Day Two of the course next week.

Canadian courts continue to grapple with scope of production issues in various contexts.  In the B.C. case of XY, LLC v. Canadian Topsires Selection Inc., [2013] B.C.J. No. 657, (“XY, LLC”) the plaintiffs brought an application for further production of records. Of note here is the fact that the defendants had failed to disclose certain records and had deliberately misled the plaintiffs and the court. As a result, an Anton Piller order had been previously executed, which secured a significant number of paper and electronic records.

Under the B.C. rule amendments, documentary production is two-tiered, in part to ensure the discovery process remains proportionate. Parties are required to produce records that are material to the case (for any party), and those upon which the producing party intends to rely at trial. Further production is facilitated through demands for particular classes of documents, which must be identified by the requesting party with relative precision. Strictly construed then, discovery is limited to a finite set of records that are identified with some precision (para. 25).

With this statutory framework in place, the B.C. Supreme Court considered whether broad document production (to the standard in the Peruvian Guano case) should continue to be available in certain cases. This required an examination of a court’s jurisdiction to invoke its inherent jurisdiction with respect to discovery issues.

The court noted that in some cases, such as those involving fraud or other wrongdoing, parties are unable to identify with specificity the full range of records they seek. Further, it may not be possible to lead evidence that these “unknown” categories of records exist.

Calling the court’s jurisdiction to order broader discovery (beyond classes of records identified with reasonable specificity) “auxiliary” in nature, the B.C. court held that “expanded document production may, in appropriate cases, serve to better achieve the diverse purposes” of a “just, speedy and inexpensive determination of every proceeding on its merits” (para. 56). However, it confirmed that extenuating circumstances would be required to order discovery outside of statutory parameters, and made clear that such cases would be limited (para. 57).

Ultimately, the B.C. court declined to give the plaintiffs the relief sought in this case, due in large part to the Anton Piller order that it held would have captured and protected the majority of the required records. Further, proportionality principles were not applied in this case as the case was deemed to be unconstrained by such concerns.

We do note with interest that another Canadian court has confirmed that it would prefer that counsel collaborate and ideally resolve discovery scope issues prior to turning to the courts for resolution (refer back to our blog on Kaymar v. Champlain).
What do we take from this case?
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• A limited scope of discovery governed by statutory rules of procedure will continue to be the norm;
• In extenuating circumstances, courts have the inherent jurisdiction to order “broader discovery”; this jurisdiction will be utilized sparingly;
• Proportionality continues to be an overriding objective in Canadian courts; and,
• Courts want to remain a last resort for discovery disputes.