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Wortzman Nickle has been actively working on records management policies and litigation readiness protocols. In our experience, privacy issues and the treatment of personal information are frequently raised as concerns. There are many reasons for a company to appropriately collect and retain an individual’s personal information. However, once the information is collected, certain obligations arise under applicable privacy legislation.
The recent economic recession has resulted in a rise in privacy complaints, largely because companies are more frequently collecting personal information and they are struggling with the manner in which they handle it. Several provinces are reporting a significant increase in employment related privacy complaints. In particular, it appears that employers are asking for personal information such as SIN numbers and other information to enable them to perform credit checks on prospective employees even prior to an offer of employment is made. In some cases, the employer is not even advising the employee that a credit check will be completed. This collection results in a number of problems: a lack of consent for the collection of the personal information, a failure to advise that a credit check will be performed, the inability of the company to justify why a credit check was required at that stage, and potential problems relating to the retention and disposal of the personal information. The best way to deal with these issues is with defensible policies and protocols. Is your business governed by PIPEDA? Is your policy falling short? The Personal Information Protection Electronic Documents Act (“PIPEDA”) provides that companies must obtain appropriate consents; collect only what personal information they require for their business purposes; safeguard the information appropriately; and, dispose of the information as soon as the purpose for which it was collected is fulfilled. To ensure your records management program is consistent and doesn’t run afoul of privacy laws, review your program as a whole. Ensure that your retention policy integrates well with your privacy policies and all other litigation readiness protocols. If your policies do not work well together, it’s time for a rewrite. The issue of cost allocation of electronic information in the context of the discovery process has not been resolved in Canada. As a general rule, the interim costs of preservation, retrieval, review and production of electronic records is borne by the party producing them. Similarly, the opposing party is required to incur the cost of making a copy for its own use, just as it had previously with paper documents. There has been a hesitancy on the part of the Canadian judiciary to make other cost-shifting orders as costs in Canada are generally awarded at the final stage of litigation.
Then comes e-discovery which has given rise to a radical expansion in the quantity and type of disclosure. Sedona Canada Principle 12 clearly provides for cost sharing or shifting before the final stage of litigation either by agreement of the parties or by court order. Master Brott of the Ontario Superior Court has recently made such an interim costs order. In Borst v. Zilli,[2009]O.J. No. 4115, the parties agreed to retain an independent computer consultant (“ICC”) to copy the defendants’ computer data. They also agreed to retain an independent solicitor (“ISS”) to review the documentation for relevancy and privilege before it be produced to the plaintiffs. The Court held that the costs of the ICC should be borne by the plaintiffs in this case and that the costs of the ISS should be shared equally between the parties. Litigants beware – Canadian courts are starting to make interim cost-shifting awards with respect to accessible electronic records! If you are concerned about the costs of your e-discovery litigation and how to best manage e-discovery in Canada, contact Wortzman Nickle. New e-discovery products are coming to market on almost a weekly basis. They serve different functions and fit into different parts of the EDRM model (notionally being: preservation, identification, collection, processing/culling, review, and production). In researching these options, we are learning that the terminology used by forensic companies is often as diverse as the products they are selling.
In particular, the term “review” is causing some confusion. In the legal context, “review” means the fifth stage in the EDRM model referencing the “lawyer review”. This is the phase after collection and processing/culling when lawyers review and code the records for relevance, privilege and to issues codes. At the review phase, we look for a robust review platform that allows customized coding fields and the integration of near de-duplication and/or concept clustering software. These features save our clients significant time and money as they avoid a linear review. However, in the forensic context, “review” often means the ability to view records (images or in native format) during the early case assessment or processing/culling phases. Does this potential conflict in e-terminology matter? Yes. Suddenly, a solution billed as “end to end” is actually an early case assessment or processing tool – one which will require an export of data to an appropriate (but different) review platform down the road. This can mean an increase in time and cost for the litigant company – the one that believed it had purchased a single “end to end” e-discovery solution. The lesson learned is this – ask lots of questions and clarify the terminology at every stage. Alternatively, call Wortzman Nickle and we’ll help you with the e-translation. |
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September 2021
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