​Yesterday, Apple had their annual fall gala, where they announced the new iPhone model (the ninth generation of this device, even though it’s called the iPhone 7). While some of the news was unexpected (Super Mario is coming to the iPhone), two things resonated with Wortzmans – people have downloaded over 140 billion apps from the App Store since 2008, and Apple has sold over one billion iPhones since its introduction nine years ago.
 
With over a billion iPhones (and another 1.5 billion other smartphones), almost 30% of the world’s population has one of these devices.  In Canada, that number is more like 70%, or almost 3 out of every 4 people in the country (including babies) have a smart phone.
 
These devices run off apps, and apps, more than anything else, collect data. Lots of data. Pokémon Go, for instance, collects and sends location data to its creator, Niantic, who can turn around and sell it to other parties. The value of knowing where people under 25 (the vast majority of Pokémon Go users) hang out is worth a lot to marketing and retail firms.
 
Despite nine years of smart phones and eight years of apps, eDiscovery is still focused on office documents and email. Contents of smartphones, even if they are considered, are usually limited to emails and possibly instant messages. Is locating an individual at a specific time important to a matter? Is something a custodian may have posted in a snapchat conversation relevant? Would the fact that an employee viewed a record stored in the cloud only on their phone help move the litigation along? All of this information is stored on that rectangular block in people’s pockets.
 
Litigation is all about information – who said what when. More and more, information is being transmitted via smartphones. Don’t limit yourself to a 1990’s mentality when thinking about discovery. It’s time litigators moved into the 21st century.

What you text may be used against you in a court of law.  The Ontario Court of Appeal, in R. v. Marakah, 2016 ONCA 542 (CanLII) has come to the opposite conclusion as that of the BC Court of Appeal in R. v Pelucco, and has found that texts, once received by the recipient, were not reasonably considered to be private by the sender.  Both cases involved parties who communicated by text.  In each case, the accused brought a s.8 Charter challenge claiming a privacy interest in the texts they sent that were retrieved from the phone of the recipient.  The Court in BC said yes – Ontario just said no.

These decisions turn on the Courts’ assessment as to whether it is objectively reasonable that a text sender can consider a text message private once received by a third party.  The conflicting rulings turn on what can reasonably be expected to happen with texts once they are received.  Was it objectively reasonable for the accused to believe the texts would be kept private?

In the BC decision, Mr. Justice Groberman found that “it was not usual for the [text] conversation to be printed, archived, or forwarded to others. In ordinary circumstances, the sender and recipient expect the record to be transitory, and not to be shared. … [I] t seems to me that the social norm is to expect that text messages remain private communications between the sender and recipient.” (Paras 64-65)

However, in Ontario, the Court rejected the blanket conclusion that texts were private, on the basis that “there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.” (Para 71)

The Court even relies on what kids are taught in school to drive the point home, because “the lack of privacy over electronic messages once in the hands of the recipient is a message reinforced in Ontario’s school curriculum on health and safety…”. (Para 73)

​These cases turn on different assessments of what is reasonable to expect in the new communication reality, both have strong dissents, and Marakah is now under appeal to the SCC.  There are arguments to be made for each position.  However, regardless of the ultimate outcome, when it comes to protecting one’s privacy, the best course of action is to play it safe. Assume that everything you text, post, Snapchat, Instagram and tweet, etc. has the potential to be used against you, whether in a playground, court, or a job interview. 

At the Ontario e-Discovery Institute 2015 conference in Toronto, Maura Grossman, of Counsel at Wachtell, Lipton, Rosen & Katz in New York, announced that, “talk was the next text” effectively predicting that audio files were the next big challenge for e-Discovery.   With every customer service call being recorded for “quality control purposes” and all verbal instructions around trading being logged, the future seemed like it was already upon us.
 
Facebook has now pronounced that it will be 100% video in 5 years if the current trend away from text posts continues.   The implications are staggering.  Facebook is a symptom of the broader move away from typed content.  Their five-year window suggests a massive shift in all aspects of on-line communication.  First, file sizes alone will create exponential growth in data storage requirements.  Hardware will have to be able to handle heavy streaming, and bandwidth will have to supply reliable presentation.  But those are technical issues.  What about the fact that video requires audio?  Will we all have to retreat to headphones for all social networking, or put up with a constant background of Donald Trump sound bites? Neither sounds particularly appealing.
 
There are also some pretty serious implications that are not easily addressed.  We can easily translate text into other languages, making content universally (with some limitations) accessible. It is hard to imagine how that will work with social video.  Search engines will need to up their games - we will need to search within videos to find what we are looking for.   From the perspective of e-discovery, this will require a shift in tools, processes and decision-making around relevance (is the whole video relevant if only one minute is germane) privilege and redaction, and will complicate the proof of authenticity and integrity of evidence.
 
There is no doubt that technology has a solution for all of this -  and Wortzmans has been watching as the pace of change increases.  The five-year window that Facebook has predicted is the most aggressive we have heard.   If they are right, hold on – we are in for quite a transformational ride.