Master MacLeod (now Justice MacLeod) of the Ontario Superior Court of Justice has recently ruled on matters dealing with the complexity of electronic disclosure between two parties who had failed to agree on a Discovery Plan. In Thompson v. Arcadia Labs Inc., 2016 ONSC 3745, the plaintiff took issue with a number of matters relating to the disclosure of documents.
First, the parties had failed to reach an agreement on the form of the Affidavit of Documents, and in particular how the documents would be described. Master MacLeod provided strong guidance on this point, and confirms that a typical “Schedule A” listing the details of each document is not necessary, as long as the purpose and objective of the Rule is met, and the documents are functionally accessible and identified with precision. This aligns with common practice in Ontario, where parties regularly avoid the traditional list, and provide fully indexed and organized litigation support software load files instead.
Second, the Defendants had failed to produce documents, pointing the plaintiff to an on-line repository instead and, in effect, telling them to search through it for relevant records. Master MacLeod considered this the equivalent of a data dump, and required a more targeted and precisely identified production.
To deal with these and other deficiencies in the disclosure of documents, the parties were ordered to meet and confer and seek to co-operate having regard to the second edition of the Sedona Canada Principles (November 2015), failing which they are to seek further direction from the court.
This is a warning for parties who choose not to take the production of electronic records seriously. The Ontario Superior Court expects cooperation, and is prepared to insist on it.
The FBI reports that in the first quarter of 2016 the costs associated with ransomware attacks in the US were more than eight times the costs in all of 2015 ($209-million in the first quarter of 2016 versus $24-million for 2015). Canadians should also be concerned. Canada is fourth on the list of countries most commonly hit by ransomware and social media scams, reports Symantec. In 2015, Canadians were reportedly affected by over 1,600 ransomware attacks each day. Just a few weeks ago, the University of Calgary paid $20,000 to cyber-attackers to restore its systems.
The fact that the University was largely unprepared for this type of attack is not uncommon among large organizations. The University paid up because it could not afford to lose critical data, a situation that many other organizations have encountered lately. Some companies are even stockpiling bitcoins, the currency used to pay the ransom, in the event they are targeted and need to pay up. This is not the type of ‘planning’ that we are advocating.
With appropriate systems in place, the University may have been able to recover its data without having to pay a dime. Some of these systems include up-to-date software, anti-virus tools, protected backup, employee training and, lastly, cyber-insurance to help cover losses related to ransom and cleanup. Cloud storage can offer some measure of protection because data is not stored locally, but even cloud-based applications need to be scanned for malware.
Perhaps the most vexing thing about the lack of preparedness on the part of the University of Calgary is that it offers an online course in cybercrime prevention that teaches how to “maintain your organization’s information security and online safety”. We hate to say it, but… lesson learned.
The Communications Security Establishment (the CSE), Canada’s equivalent to the US NSA, recently acknowledged that it inadvertently shared information about Canadians with its foreign partners. A CBC News internal investigation also recently exposed Blackberry in helping to intercept user data “for years” to help in hundreds of police investigations in dozens of countries.
The CSE downplayed the incident by stating that the metadata shared with Canada’s partners “did not contain names or enough information on its own to identify individuals” and that the privacy impact “was low.” Blackberry, on the other hand, maintains that it is doing “what is right”.
While Blackberry has been handing over actual personal data (including BBM messages), the fact that the CSE only revealed metadata is not particularly comforting. In fact, metadata contains so many bits of information, that when linked together can tell a complete story. And the amount of metadata that the CSE has access to is massive. Canadians generate metadata on a constant basis, even while asleep, because our devices are almost always connected to the Internet.
The CSE has not yet provided any clarifications on the laws under which it operates, notwithstanding that this information has been requested. This is in direct contrast to several large technology companies who have recently volunteered information about how much data they disclose to the police by publishing transparency reports (Blackberry is not one of them).
A Supreme Court of Canada ruling in 2014 held that Canadians’ Internet activities are presumed to be private and collection of this information can only occur with a court’s permission. It appears that neither the CSE nor Blackberry is operating under this authority. So what does this mean for Canadians’ privacy rights? The Office of the Privacy Commissioner of Canada is expected to weigh in on the matter in the fall. We hope it will take this opportunity to provide Canadians with some clarity and give strict guidance to everyone who is ‘listening’.