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Updated April 16, 2010 Scope of production and discovery Scope of production and discovery30.01 (1) (a) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194, interprets "document" to include: "a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form". This interpretation builds on the definition of "document" in s. 1.03 (1) to include "data and information in electronic form"; “electronic” includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and “electronically” has a corresponding meaning; (“électronique”, “par voie électronique”). Business records to be admitted in evidence. Section 30 of the Canada Evidence Act. Authentication of electronic documents. Section 31.1 of the Canada Evidence Act. Following sections deal with "the best evidence rule in respect of an electronic document" and with the "presumption of integrity". Definitions. Section 31.8 of the Canada Evidence Act. Includes definitions of an "electronic document", data, computer system, and "electronic documents system". AstraZeneca Canada Inc. v. Apotex Inc., 2008 FC 1301 (CanLII) An appeal from a Prothonotary's decision disposing of requests for answers put to party representatives during discovery. The court said, "it is clear that the Rule is intended to bring to bear a more issue-oriented test of relevance and avoid the “train of inquiry” cases that have served to expand discovery with little or no effect on matters that are ultimately presented to the trial judge." (para 11) eBay Canada Ltd. v. Canada (National Revenue), 2008 FCA 348 (CanLII) Date: 2008-11-07 Docket: A-105-08 Evans J.A. "This is because, with the click of a mouse, the appellants make the information appear on the screens on their desks in Toronto and Vancouver, or anywhere else in Canada. It is as easily accessible as documents in their filing cabinets in their Canadian offices. Hence, it makes no sense in my view to insist that information stored on servers outside Canada is as a matter of law located outside Canada for the purpose of section 231.6 because it has not been downloaded. Who, after all, goes to the site of servers in order to read the information stored on them?" (para 48) eBay Canada Limited v. Canada (National Revenue), 2008 FCA 141 (CanLII) Date: 2008-04-17 Docket: A-105-08 Sharlow J.A. Motion by eBay to stay execution of a judgement authorizing Revenue Canada to require eBay to to provide information to the Minister about PowerSellers whose eBay registration indicates a Canadian address. The required information includes the names of the PowerSellers, their contact information, and the amount of their gross annual eBay sales. Dismissed. LexisNexis summary is here. Apotex inc. v. Bristol-Myers Squibb, 2007 FCA 379 (CanLII) Date: 2007-11-29 Docket: A-25-07 • A-22-07. Sharlow J.A. 30] In determining the propriety of a particular question posed in the examination for discovery of Dr. Ryan, the test is whether it is reasonable to conclude that the answer to that question might lead Apotex to a train of enquiry that may either advance its case or damage the case of BMS: Apotex v. Canada, 2005 FCA 217 (CanLII), 2005 FCA 217. For example, Apotex is entitled to ask any question that could elicit an admission by BMS as to a relevant fact, or that could elicit information about the existence of documents that have not been disclosed but that meet the test of relevance for the purposes of pre-trial discovery, as set out in the Further and Better Order, subject always to the overriding discretion of a prothonotary or judge to control abuses of the discovery process. Brian Dressler Medicine Professional Corporation, order HO-005 of the Information and Privacy Commissioner/Ontario, 2007-06-07. Ann Cavoukian, PhD. A video image of a woman using a washroom in a methadone clinic was intercepted by a wireless device located in a car near the Clinic. On page 7 of the order, the Commissioner writes, "In the present case, at the time that the Clinic broadcast the video image, a “record” was created in the sense of an account of something that occurred ..., specifically, a woman using the washroom to provide a urine sample. That record was created electronically in the form of encoded data. The wireless transmission of this data is analogous to a conversation, in which sound is “encoded” with information through the use of language." She subsequently goes on to write, "Further, I find that when the CCTV camera captured the image of the woman, the Clinic created information in “recorded form” under section 4(1) of the (Personal Health Information Protection) Act." Dulong v. Consumers Packaging Inc., [2000] O.J. No. 161 January 21, 2000 OSCJ Commercial List Master Ferron.. The court held that a broad request from a plaintiff that the corporate defendant search its entire computer systems for e-mail relating to matters in issue in the litigation was properly refused on the grounds that such an undertaking would, "having regard to the extent of the defendant's business operations, be such a massive undertaking as to be oppressive". (para 21). Joseph Pruner Ltd. v. Ford Motor Co. of Canada, [1992] O.J. No. 88 January 20, 1992 McWilliam J. The court ordered production of "all data relating to vehicle deliveries from the defendant to the Ford and Mercury Dealerships in Ottawa and Hull for the calendar years 1980-1988. The defendant has a system called the GRS which permits it to keep on tapes the order date, the factory leaving date, the dealer receiving date, and the date each vehicle was sold by vehicle identification number (VIN). The information on these tapes are relevant, the plaintiff says, to the issue of favouritism in the provision of Ford Tempos in 1984 to a competing dealer." Sourian v. Sporting Exchange Ltd., 2005 CanLII 4938 (ON S.C.) 2005-03-02 Docket: 04-CV-268681CM 3. Master Calum U.C. MacLeod. Production of information from an electronic database. An electronic database falls within the definition of “document” in our (Ontario) rules. The challenge in dealing with a database, however, is that a typical database would contain a great deal of information that is not relevant to the litigation. Unless the entire database is to be produced electronically together with any necessary software to allow the other party to examine its contents, what is produced is not the database but a subset of the data organized in readable form. This is accomplished by querying the database and asking the report writing software to generate a list of all data in certain fields having particular characteristics. Unlike other documents, unless such a report is generated in the usual course of business, the new document, the requested report (whether on paper or on CD ROM) would have to be created or generated. Ordering a report to be custom written and then generated is somewhat different than ordering production of an existing document. I have no doubt that the court may make such an order because it is the only way to extract the subset of relevant information from the database in useable form. On the other hand such an order is significantly more intrusive than ordinary document production. A party must produce relevant documents but it is not normally required to create documents. Accordingly such an order is discretionary and the court should have regard for how onerous the request may when balanced against its supposed relevance and probative value. (Italics P.D.) Robak Industries Ltd. v. Gardner et al, 2005 BCSC 1133 (CanLII), 2005-08-11 Docket: S046557. Master A.N. Patterson. Counsel for the plaintiff wrote to counsel for the defendant requesting document disclosure. Such disclosure was to include such things as emails and cell phone records. Not every email relating to xxx has been disclosed. In addition, it does not appear that cell phone records for the period in question have been produced. It is clear that there is to be wide production of documents and that if it is clear that documents have not been produced through inadvertence or otherwise, an affidavit of documents is appropriate. Irwin Toy Ltd. v. Doe, 12 C.P.C. (5th) 103 (ON S.C.), September 8, 2000 Docket: 00-CV-195699CM. Wilkins J. Plaintiffs brought action for damages for defamation arising out of publication of electronic mail message to approximately seventy-five recipients using the internet. The moving parties seek to obtain the identity of "Joe Doe". Further investigation identified that this particular internet alias was tracked to an internet protocol address that was further traced and ascertained to refer to a subscriber of iPrimus Canada, an internet service provider. "The moving party demonstrated on the affidavit material that it has a prima facie case as against Joe Doe in respect to the allegations of claim made in the Statement of Claim. In my view, that is the appropriate test for the court to apply in determining whether or not to order a non-party internet service provider to disclose the identity of an internet protocol address. (Italics P.D.)...iPrimus Canada, is directed to provide that information to the plaintiffs. Northwest Mettech Corp. v. Metcon Services Ltd., 1996 CanLII 1056 (BC S.C.) 1996-08-30 Docket: C955055. Master B.M. Joyce. In my view the plaintiff is not entitled to production of the hard drive itself. They are entitled to production of only the relevant electronic data which is resident on that hard drive. (Italics P.D.) As I understand it, a computer hard drive is simply a medium on which data is stored on a semi-permanent basis in the form of electronic impulses. It may be thought of as an electronic filing cabinet which contains electronic files, each of which in turn contains electronic documents. The defendants are obliged to list all relevant documents of whatever form (including electronic documents resident on computer hard drives). In my view they are not required to list the entire contents of nor are they required to produce their entire electronic filing cabinet any more than a party is required to list or to produce the complete contents of its steel filing cabinets which house documents which are in paper format. Walter Construction (Canada) Ltd. v. Greater Vancouver Sewerage & Drainage District, Heard: April 15, 2003; May 7, 2003 Judgment: October 17, 2003 Docket: Vancouver S015854, A980651. V. Gray, J. Documents are defined in Rule 1(8) (British Columbia) as follows: 'Document' has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device." In Prism Hospital Software Inc. v. Hospital Medical Records Institute (1991), 62 B.C.L.R. (2d) 393, Mr. Justice Parrett held that the word "document" must be given an expansive meaning and relates to any information stored by any means, including magnetic media. Walter is entitled pursuant to the Rules to have access to the electronic documents. It may be that the electronic documents include documents which are partly or fully privileged, or which include irrelevant information which may be sensitive. There may also be other difficulties associated with producing the electronic documents. If the parties cannot agree on what electronic documents must be produced, they have liberty to apply for a further order. (Italics P.D.) Procter & Gamble Co. v. Kimberly-Clark of Can. Ltd., 25 C.P.R. (3d) 244, 30 F.T.R. 178 April 13, 1989 Docket: Doc. T-1493-86. Teitelbaum J. The issue was whether plaintiff was entitled to inspect the originals of the computer tapes and whether or not plaintiff was entitled to take copies of the above listed computer tapes pursuant to Rule 453 of the Federal Court of Canada Rules. Counsel for the defendant conceded that the computer tapes that it listed on its Rule 447 and 448 List of Documents were documents and conceded that the plaintiffs were entitled to take a copy of the documents (computer tapes). The issue was the format of the copy. Counsel stated that what was meant by the Rule was that the defendant was only required to give to the plaintiffs a copy of everything contained on the computer tape "in a human readable form". There was no necessity, he stated, to have a copy of the computer tape itself made. (Italics P.D.) The court ruled "It is not enough for the defendant to offer to provide a copy of the document "in a human readable form". The document listed on the List of Documents is not the "human readable form" of the computer tape but the computer tape itself." Requests for further productionNEW Rossi v. Vaughan (City), 2010 ONSC 214 (CanLII) Date: 2010-01-19 Docket: 07-CV-326105PD2 Master Sproat. In a wrongful dismissal case involving allegations of political conspiracy, the plaintiff moved for an order requiring the city to search its servers and computer systems for correspondence relating to matters at issue, to and from a former mayor. In addition, the plaintiff moved for a forensic examination of the mayor's former work computer and his home computer. The court dismissed the motion in its entirety. Regarding the search of servers, the plaintiff disputes the parameters of the original search, but "at no time questioned the City as to its efforts to search or requested particulars as to the parameters of the search that was undertaken. More importantly, there was no evidence to suggest that the City had failed to disclose relevant documents." (para 4) Regarding the business computer and the personal computer, the court held that the plaintiff was not entitled to the forensic search since first, "there is no evidence that there are relevant documents or data in electronic form contained on either of the computers." " Second, there is no evidence of non-disclosure or of any omission from production and disclosure obligations". "Third, there is no basis to depart from the general rule that a litigant has the initial or primary onus or obligation of disclosing relevant documents in the first instance." "Fourth, the investigation requested by the plaintiff is costly, in my experience. There is nothing in the record that would support such expense. The new rules require the court to consider proportionality and there is no evidence to suggest that the benefits of such an investigation would warrant the costs." "Fifth, it would appear, in any event, that (the former mayor) did complete a computer search and that this search did not disclose any further relevant documents." Honour v. Canada (Attorney General), 2008 BCCA 346 (CanLII) Date: 2008-09-09 Docket: CA036224 • CA036223. Bauman J. The pilot’s widow seeks leave to appeal the order in Chadwick v. Canada to produce her husband’s computer for forensic analysis. Court declines to grant leave, since the scope covers a limited time period, will be paid for by the defendant, contemplates a search protocol agreed to by the parties (or determined by the court in the absence of agreement), and the search results are to be reported to plaintiff’s counsel. Although the court doesn’t emphasize it, the order also required review of the documents by an independent counsel to avoid the possibility of disclosure of privileged or irrelevant information. Mathieson v. Scotia Capital Inc., 2008 CanLII 45409 (ON S.C.), Date: 2008-09-09 Docket: 07-CV-335295PD2. Master Sproat. In a wrongful dismissal case, plaintiff moved for production of all 25,000 emails retrieved in a search on the plaintiff's name among the email stores of 8 principals and their assistants covering the one year period prior to the termination. Of these 25,000, only 27 emails were produced, and of these very few were in fact new documents. Plaintiff argues that more than the 27 emails produced were expected, and the plaintiff alleges bad faith. The Master concluded there was no evidence that documents were missing and no apparent gaps that would justify a motion to compel, and no reason to believe "that the documents sought have any relevance to the issues in the action or have any probative value". Motion was dismissed. Shields Fuels Inc. v. More Marine Ltd., 2008 FC 947 (CanLII) Date: 2008-08-13 Prothonotary Roger R. Lafrenière. Plaintiff seeks damages for a breach of contract and a permanent injunction preventing the defendants from carrying fuel allegedly owned by the plaintiff on the defendant’s barge, which was arrested shortly after the suit was launched. Defendant filed a statement of defence denying they entered into a contract and a claim for a lien on the fuel on the barge, as well as damages for wrongful and continued arrest of the defendant barge. After serving their affidavit of documents, defendant amended the statement of defence and counterclaim to claim that plaintiff caused the defendant barge to be arrested in order to take advantage of the defendants “when the Plaintiff knew or ought to have known that the Corporate Defendants did not have the means to provide a bond”. Plaintiff subsequently requested production of financial records so that the issue of financial means could be explored on discovery. The defendant produced an unedited balance sheet, but plaintiff considers the production insufficient to allow them to examine the defendant on capacity to provide a bond. This motion requests an order to produce Supplementary Affidavits of Documents listing the financial records for 2007 and 2008, including the monthly income statements and balance sheets. In opposing, the defendants state they have produced all relevant financial records in their possession. Defendant explains that their A/R and A/P records update on payments made and then “fall away” (para 8). Defendant would have the engage on contract the former employee who set up the financial system at a cost of $500-$750. Defendant declined plaintiff’s offer to send one a technician at its own expense to retrieve the information from the database. Defendants argue they should not be required to expend time and resources to create tailor-made documents. Rules 222 to 226 contemplate the production of documents “in the possession, power or control” of a party. The most relevant electronic data and information in the “control” of a party will be that which can be accessed by the party’s computer users in the ordinary course of business, otherwise known as the active data. The Court held that “The rules should not be interpreted, however, so narrowly as to prevent a party from obtaining other relevant information, such as archival data that is still readily accessible and not obsolete. In exercising its discretion whether to compel production, the Court should have regard to how onerous the request for a generated record may be when balanced against its relevance and probative value.” (para 13) The Court granted the order, concluding “The information requested by (the plaintiff) consists of basic archival accounting records that would be available to a company in the usual course of business.” Chadwick v. Canada (Attorney General), 2008 BCSC 851 (CanLII) Date: 2008-06-20 Docket: S065491 Myers J. In an action arising out of a helicopter crash, the court ordered the widow of the pilot to produce the hard disk of her husband's computer for forensic analysis. An email from the deceased produced by Transportation Safety Board in response to an access to information request was not produced by the plaintiff; the email listed problems the pilot had had with the aircraft. Upon disclosure of the email, defence counsel asked plaintiff to review the hard drive for relevant documents, including those that would have been deleted. Plaintiff's counsel engaged a forensic analyst who retrieved the subject email with attachment as well as a partial list of a helicopter log. Counsel did not provide the methodology used in reconstructing the data on the drive. The parties dispute the terms used to search for relevant information on the disk. Attorney General moves for the disk to be analysed an experts retained by the defendants, and independent counsel to review the documents, at the expense of the defendants. The purpose of the independent counsel was to ensure that all relevant documents would be produced and to protect privileged or irrelevant information. Analysis involves the discussion of the hard disk as a filing cabinet, and why, in this case, it is appropriate to have the hard disk analyzed a second time by experts retained by the defendants, provided privileged, private and non-relevant information is protected. Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII) Date: 2008-06-11 Commissioner of Competition v. Labatt Brewing Company Limited, 2008 FC 59 (CanLII) Date: 2008-01-28 Docket: T-325-07 Anne L. Mactavish J. Decision to set aside a production order granted to the Commissioner of Competition on an ex parte basis. Among the criteria included excessive burden on respondents and requests for information that has already been produced or which is not relevant to the inquiry. Respondents also asserted that the the information provided by the Commissioner in support of its application was misleading, inaccurate or incomplete, such that the order should never have been made. See Dan Michaluk's blog for more information. Ritchie v. 830234 Ontario Inc. (Richelieu Hardware Canada Ltd.), 2008 CanLII 4787 (ON S.C.) Date: 2008-01-18 Docket: CV-07-0213 D.C. Shaw J. In this suit for wrongful dismissal, the plaintiff moves for an order “that the defendant preserve, retrieve and produce all relevant electronic documents in its possession or control The plaintiff seeks to have a third party information technology company image and store the contents of all computers, mobile handheld devices and other electronic devices of every kind used by the defendant. The plaintiff then wants the defendant to review the imaged file index to determine if privilege is claimed and to produce in electronic form all relevant documents for which privilege is not claimed.” The defendant has produced the attachment to one email as the one relevant document. Defendant did not produce the container email, claiming the email had no relevant information and has long since been purged. Plaintiff has produced “no evidence on this motion that there is any other relevant data and information in electronic form”, but speculates about the existence of other e-mails exchanged among his immediate supervisor, the regional manager and the general manager of the company. Plaintiff asks the court to assume there were other (relevant) emails. Citing Master Dash in White v. Winfair 2005 CanLII 13037 (ON S.C.), the Court declined to grant the order based on the lack of convincing evidence of the existence and relevance of the documents sought. The Court goes on to state that the plaintiff may renew its motion if evidence of other relevant documents arises during examinations for discovery. The Court did, however, order the defendant to "use its best efforts to retrieve this (container) e-mail and produce it and the attachment, in electronic form to the plaintiff." Shell Canada Limited v. Superior Plus Inc., 2007 ABQB 739 (CanLII) Date: 2007-12-03 Docket: 0301 09751 Dennis G. Hart, J.C.Q.B.A. This action is a suit for damages from the evacuation of a mine site resulting from a fire caused by a leak from the defendant’s propane delivery truck. The plaintiffs had also sued their insurance company for damages related to the fire and cost overruns during construction of the mine. The statement of defence had been amended with new allegations that the plaintiffs had failed to ensure a functioning and commissioned fire protection system. In this motion, the defendant alleges that the plaintiff is withholding relevant and material records, that the search terms were inadequate, and seeks further production. The insurance collection of 50,000 documents included 15,000 related to the fire. These 15,000 documents were reviewed by hand for relevance to the plaintiff’s suit against the defendant. This review was supplemented with a keyword search. The remaining 35,000 documents in the insurance collection were searched for relevant documents using less intensive search criteria. The Court concluded that the approach taken by the plaintiffs to review the insurance documents complied with Principle 10 of the Ontario eDiscovery Guidelines, was reasonable, and that the additional production sought by the defendant will not yield relevant and material records.(para 41) The Court observed that the adequacy of the search terms would not be an “issue at all if counsel had collaborated on the terms as suggested in the Ontario Guidelines.” (para 36) Dan Michaluk’s blog has an excellent summary of the case. Spielo Manufacturing and Manship v. Doucet and Dauphinee, 2007 NBCA 85 (CanLII) Date: 2007-11-15 Docket: 99/07/CA M.E.L. Larlee J.A, J.T. Robertson J.A, J.C. Marc Richard J.A. Cites Ontario eDiscovery Guidelines and Sedona Canada Principles in draft form, with link to Sedona Conference website. Appeal from decision in June, 2007. Court points out that if there were to have been an appeal, it should have been against the original order of Savoie J. Dan Michaluk’s summary is here. Hummingbird v. Mustafa, 2007 CanLII 39610 (ON S.C.) Date: 2007-09-19 Docket: 06-CV-304092PD1 Master Sproat "...the defendants seek a disk image of Mustafa’s hard drives which Hummingbird used to produce documents in their affidavit of documents and supplementary affidavit of documents and to advise of the anticipated cost of this request. Essentially, the defendants wish to have a mirror copy of the hard drive of the computer used by Mustafa while employed by Hummingbird". In his conclusions, relies on Reichman to include the hard disk in the definition of a document, and interprets the hard disk as permitting the inspection of the "original" of the production. Goes on further to state that provision of the mirror-image is the most cost-effective approach, in line with Rule 1.04 (just, most expeditious and least expensive determination of the proceedings). (Since the disk is indeed the one used by the defendant while at Hummingbird, there would be no concerns about protection of privacy. PD) Spar Aerospace Limited v. Aerowerks Engineering Inc., 2007 ABQB 543 (CanLII) 2007-09-04 Docket: 0403 24218 J.B. Veit J. The court granted a request by the plaintiff for a declaration that the defendants have failed to provide an adequate affidavit of records within the time prescribed by court order and for a collateral declaration that ...the plaintiff was entitled ... to obtain the defendants’ imaged hard drives and all records seized during the execution of an Anton Piller order. No protection provided for personal information that may have been co-mingled with the business information on the imaged hard drives. The defendant's appeal from the order was dismissed. Doucet v. Spielo Manufacturing Inc., 2007 NBQB 245 (CanLII) Date: 2007-06-29 Docket: M/C/1157/03 Lucie A. LaVigne J. Cost shifting issues. Retrieval of information from backup tapes. Failure to comply with a production order. Third motion dealing with discovery. Plaintiffs seeking declaration that defendants have not complied with the order, are in contempt and have abused the process of the court. Re computer access, defendants contend they no longer have a computer system and that documents are only available on backup tapes, even though plaintiffs had advised them from the beginning that they would be looking for electronic information. There are 427 backup tapes. Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770 (CanLII) Date: 2007-05-31 Docket: L051505. Shabbits J. Requiring an affidavit to verify that production is complete. "In Foundation Co. of Canada Ltd. v. Burnaby (District), [1978] B.C.J. No. 557 (B.C.S.C.), Legg J. discussed the purpose of the rule that a party may be required to verify by affidavit that the documents which it has listed are all the documents that are or have been in their possession. He explains, at para. 7, that the purpose of Rule 26(3) is to enable a party to require that every reasonable effort has been made by its opponents to reveal the existence of all relevant documents that are or have been in their possession. Legg J. states that when some documents that are significant to the defence or claim of a party have for whatever reason been omitted, that in the absence of any adequate explanation or reason for such omission, an order directing the delinquent party to deliver an affidavit verifying the list of discovered documents ought to be made." (para 55) "In my opinion, the defendants have adopted a narrow view as to what their lists of documents ought to include. I conclude that the defendants should be put on their oaths so that their consciences are appropriately engaged in the decision as to what documents are material to the proceedings, and whether they have yet been produced." (para 59) Stergiou v. Stergiou, 2007 CanLII 17642 (ON S.C.) 2007-5-18 Backhouse J. The wife sought temporary orders for the production of the hard drive to her husband's personal computer for imaging. "The evidence and documentation that has been produced support that the husband has not been candid about his home computer. The wife’s proposal that a lawyer be retained to act as an independent counsel to parse any matters of solicitor and client privilege is a reasonable one. The hard drive of the husband’s home computer shall be produced for imaging and delivered to Stacie Glazman to parse any matters of solicitor and client privilege. The remaining contents shall then be delivered to the wife’s solicitor." (para 41) Stanfield v. The Queen, 2007 TCC 480 (CanLII) Date: 2007-05-10 Docket: 2004-1415(IT)G. The Honourable Gerald J. Rip, Associate Chief Justice. Respondents motion to compel (Appendix 2) includes copies of all documents printed on that computer and all data on the hard drive as it respects the joint venture (Q115) and the hard drive and copies of any documents .... printed out on that computer respecting the joint venture trades (Q117). In Q118, the respondent states: "The witness' evidence is that he didn't have any information on that computer relating to these trades. The Respondent claims that this is contradictory to what he reported therefore it is relevant to the issue and the Crown is seeking to explore this at discovery." Kaymar rehabilitation inc. v. Ottawa-Carleton Community Care Access Centre, 2007 CanLII 9757 (ON S.C.) Date: 2007-03-21 Docket: 05-CV-030917 Master Beaudoin. On applications for orders compelling better production from both plaintiffs and defendants and answers to interrogatories from plaintiffs, the court ordered “that the parties are to confer and attempt to agree with respect to which person’s e-mails at what location and what key words are to be used for search of records”. The court also ruled on what need not be produced: “Just because a document produced refers to words & “Guideline” or “RFP” this doesn’t mean that this other document relates to matters to this litigation. If the plaintiff has a different or expanded theory of its case it is to provide an amended statement of claim or further particulars prior to the next round of discoveries.” (para 4) NAC Constructors Ltd. v. Alberta Capital Region Wastewater Commission, 2006 ABCA 246 (CanLII), 2006-08-25, MacFadyen O'Leary Berger JJA. In a dispute about the award of a contract after a request for proposals, the Defendant appealed an order to compel responses to three questions related to the advice and opinions provided by a consultant company (Earth Tech) it had retained to help with the evaluation of bids. The court agreed with the appellant, stating “The disputed evidence may comprise opinions and advice that relates to compliance of the Maple and NAC bids, the fundamental and determinative issues raised by the pleadings, and that evidence may be relevant to those issues in a broad sense. But it is not material to them within the Rules fixing the scope of examination for discovery. Resolution of the issues of compliance of the tenders does not depend in any way on the opinions and advice communicated by Earth Tech to the Commission. The disputed evidence cannot reasonably be expected to significantly assist in proving or disproving the issues of compliance. (para 17) Doucet v. Spielo Manufacturing Inc., 2006 NBQB 249 (CanLII) Date: 2006-07-14 Docket: MC115703. R. Savoie J. Employment case involving wrongful dismissal, unlawful termination, unjust enrichment and breach of fiduciary duty. The court order that the Defendants provide access to the computer system of the Defendant Spielo Manufacturing Incorporated (“Spielo”), including the archives of such system, by the Plaintiffs or their agent. Detailed order attached to decision does not appear to protect privacy or confidentiality. Desgagne v. Yuen et al, 2006 BCSC 955 (CanLII) Date: 2006-06-21 Docket: M040544. Myers J. In a motion the Defendants seek production of the the hard drive from the plaintiff's home computer for analysis by an expert, as well as the plaintiff's Palm Pilot and video game unit. "It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production. For the purposes of this part of the motion (as opposed to the request for the metadata, which I discuss below) the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party’s filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed." (para 20) Value of the production outweighed by competing interests, which included not only the time and expense of production but also confidentiality. (para 38 and following analysis for each type of evidence sought). Roeske v. Grady, 2006 BCSC 1975 (CanLII) Date: 2006-01-06 Docket: M022824. H.A. Slade J. Defendant applied for an order that the plaintiff provide to the solicitors for the defendants her PowerBook computer, including but not limited to the computer’s hard drive and any removable floppy CD or other DVD disks containing data originating on her PowerBook computer, twenty days before the scheduled start of the trial in an action that had commenced in 2004. Examinations for discovery had already been completed and expert reports exchanged. Defendant was willing to pay for the imaging of the hard disk. The court rejected the idea advanced by the defendant that the hard disk is a document that should have been produced, stating: "As it is the information and not the medium for its storage that may be relevant, I see no basis for the delivery of the hard drive as a document and no basis from departure from the general rule that plaintiff’s counsel have the first opportunity to vet any information derived from it for relevance." (para 27) "In the circumstances, taking account of the marginal value for trial purposes and the onerous burden it would put on the plaintiff late in the day, I conclude that I should exercise my discretion in this matter in favour of the plaintiff." (para 32) Park v. Mullin, 2005 BCSC 1813 (CanLII) Date: 2005-12-30 Docket: 04/0348. J.L. Dorgan, J. The court held that it : “…. has used its discretion to deny an application for the production of documents in the following circumstances: (1) where thousands of documents of only possible relevance are in question: Peter Kiewit Sons Co. v. B.C. Hydro; B.C. Milk Marketing Board v. Aquilini; and (2) where the documents sought do not have significant probative value and the value of production is outweighed by competing interests, such as confidentiality, and time and expense required for the party to produce the documents: Goldman, Sachs & Co. v. Sessions.” Rhodia UK Ltd. v. Jarvis Imports (2000) Ltd., 2005 FC 1628 (CanLII) Date: 2005-11-30 Docket: T-1832-04 Danièle Tremblay-Lamer J. "It is well established that the party seeking further production must offer persuasive evidence that documents are available, but have not been produced, and the burden of showing that another party's productions are inadequate lies with the party making the allegation: Montana Band v. Canada, [2001] F.C.J. No. 991 (T.D.) at para. 5; Havana House Cigar & Tobacco Merchants Ltd. v. Naeini 1998 CanLII 7605 (F.C.), (1998), 80 C.P.R. (3d) 132 at para. 19, aff'd 1998 CanLII 7619 (F.C.), (1998), 80 C.P.R. (3d) 563 (F.C.T.D.); Apotex Inc. v. Merck & Co., 2004 FC 1038 (CanLII), (2004) 33 C.P.R. (4th) 387 (F.C.) at para.13 -14." (para 5) Del Zotto v. Canada (Minister of National Revenue), 2005 FC 653 (CanLII) 2005-05-09 Docket: T-2207-01 W. Andrew MacKay D.J.F.C. "[28] It is well settled that in the absence of evidence that personal information exists in the possession of a government institution, mere speculation that it should exist provides no basis for the Court to order production (see Sheldon Blank & Gateway Industries Ltd. v. the Minister of the Environment, 2001 FCA 374 (CanLII), 2001 FCA 374, Sheldon Blank v. Minister of Justice, 2004 FCA 287 (CanLII), 2004 FCA 287, per Létourneau J.A. at para. 76; and Clancy v. Canada (Minister of Health), [2002] F.C.J. No. 1825, per Blanchard J.). Where the evidence before the Court indicates that information requested does not exist there is no basis for deeming a refusal to produce requested information." White v. Winfair Management Ltd., 2005 CanLII 13037 (ON S.C.) Date: 2005-04-21 Docket: 03-CV-246818CM2 Master Ronald Dash. [9] The choice as to what documents in a party’s possession are relevant and should be produced is in the first instance up to the party making production. This is subject to abuse, as a party may not disclose relevant documents, either by design or because of a genuine dispute as to semblance of relevance. The onus then is on a party alleging that relevant documents have been omitted from an affidavit of documents to lead convincing evidence, as opposed to mere speculation, as to the existence and relevance of the documents sought. Often this evidence is obtained by conducting an examination for discovery and asking questions as to the existence of documents, although it is not necessary to first conduct discoveries if convincing evidence otherwise exists: Bow Helicopters v. Textron Canada Limited (1981), 23 C.P.C. 212, [1981] O.J. No. 2265 and RCP Inc. v. Wilding [2002] O.J. No. 2752. The plaintiff herein has asked for a wide scope of corporate and financial records, a substantial portion of which may bear no relevance to the issues herein. Although the plaintiff has provided some evidence that records likely exist as to the financial and corporate relationships among the defendants, an examination for discovery of the defendants could have revealed the precise documentation available and help narrow what documents are relevant to the issues pleaded. I agree with Master MacLeod in RCP Inc. v. Wilding at p. 4 that when dealing with wide categories of business records it may not be possible to determine the extent or depth of the required productions until preliminary questions have been asked at an examination for discovery or a preliminary level of production of a category of documents have been made, then followed by examinations and possibly a follow up motion for a further level of production. The plaintiff has determined to forgo the opportunity to conduct an oral discovery by delivering a trial record, thereby complicating the process of determining the proper documentary disclosure. Walter Construction v. Catalyst, 2003 BCSC 1582 (CanLII) Date: 2003-10-17 Docket: S01585. Gray J. In a suit for breach of contract, plaintiff seeks an order for further production, including the electronic versions of documents already produced in paper. No support for the position that further production would be onerous. The court found that the the documents sought would be relevant and ordered the production. See Annex A for excerpts from the Notice of Motion. N.B. no apparent provision for privilege, although court does mention that there may be sensitive of privileged information in the electronic documents in para 38, inviting the parties to apply for a further order if they cannot agree on what will be produced. Effect of failure to disclose or produce for inspectionFailure to Disclose or Produce DocumentRule 30.08 (1) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 provides for the situation "where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection". Failure to Serve Affidavit or Produce DocumentRule 30.08 (2) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 provides for the situation "where a party fails to serve an affidavit of documents or produce a document for inspection." Failure to comply with an Interlocutory OrderRule 60.12 of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 states:
C.B. Constantini Ltd. v. Slozka, 2007 BCSC 615 (CanLII) Date: 2007-03-22 Docket: S062914 Demands for particulars NEWNEW Border Enterprises Ltd. v. Beazer East, Inc., 2003 BCSC 49 (CanLII) Date: 2003-01-09 Docket: C974540 Tysoe J (as he was then). In an environmental case, the defendants demand particulars of the allegations. In essence, "the real competition between the parties is that the Federal Crown wishes to keep its allegations against Beazer as broad as possible, while Beazer wishes to know the allegations with particularity. The Federal Crown wishes to leave the door open in case the discovery process discloses additional information which supports claims of the nature pleaded against Beazer. On the other hand, Beazer wants to know the case it has to meet and wishes to limit the amount of documents which it is obliged to produce on discovery." (para 29) The court held, "(T)he Federal Crown is required to make specific allegations against Beazer on the information which is known to it and those allegations form the basis of relevancy for discovery purposes. If the Federal Crown learns additional information, it is entitled to provide further particulars and the discovery process will be widened accordingly." "If such misrepresentations were made by Beazer to it, the Federal Crown should be aware of the nature of each misrepresentation, when it was made, who made it, to whom it was made and how the Federal Crown relied on it to its detriment. The discovery process should be limited to the known misrepresentations but if other misrepresentations come to light, the Federal Crown can provide further particulars pursuant to Rule 19(11.1)." (para 32) The court goes on to propose "(a) staged production of documents in the present circumstances for two reasons. First, the Federal Crown has not yet provided adequate particulars of its claims against Beazer and the parameters of discovery are governed by the pleadings (including particulars). Second, in a case such as this one, where the Federal Crown is making broad allegations of material non-disclosure, there should be reasonable limits placed on the extent of document disclosure until there is evidence which establishes that further disclosure is warranted. If one stage of document disclosure illustrates that there are likely to be other relevant documents, then there should be a further stage of disclosure." (para 53)
Preservation of evidenceNEW Culligan Canada Ltd. v. Fettes, 2009 SKQB 343 (CanLII) 2009-09-01. Ball J. In an application for injunctive relief in a breach of fiduciary duty and misuse of confidential information by former employees, the plaintiff seeks, among other things, an order for preservation and production of information. In para 50, the court states that the plaintiffs did try to recover information from the laptops used by the former employees, but the critical documents on the disks had disappeared and there was a disk-wiping utility on all the laptops, according to the forensic company FDR. In para 87, the court confirms the parties were obligated to take "reasonable and good faith steps to preserve and disclose relevant electronically stored documents. If deleted or residual documents may be relevant, that information must be communicated to the other party early to mitigate the consequences of potential claims of spoliation". In para 88, the court then extracts language from Practice Direction 6, E-Discovery Guidelines, that came into effect September 1, 2009. The Guidelines require parties to confer early and throughout the proceedings. The court therefore declines to make the order until the conferences have taken place. Nac Air, LP v. Wasaya Airways Limited, 2007 CanLII 51168 (ON S.C.) 2007-11-23 Docket: CV-07-0464 H.M. Pierce J. Plaintiff alleges defendants accessed its confidential website to obtain information about rates, having formed that opinion after several months of monitoring access to its website and patterns of rate changes. (para 6) Plaintiff was granted an Anton Piller order to seize computer files and other documents, but during execution seized images of a computer that was not included in the order. Defendants moved to have the AP order set aside, arguing that the plaintiffs did not prove that there was a real possibility the defendants would destroy the information. Court focused on whether there was a possibility of intentional (italics in the decision) destruction, choosing not to accept plaintiffs' argument that the destruction of "evidence of browser sessions including IP addresses" would happen during everyday use of the computer, whether intentional or otherwise. Court also questioned urgency, since plaintiff waited from March to November before seeking the order, although plaintiff had explained that it was monitoring access to the website to confirm its suspicions. Court "concluded that the plaintiffs have not demonstrated on a balance of probabilities that there is a real possibility that the defendants may destroy such material before discovery." The Court ordered the return of the material seized and substituted a non-specific order to "preserve documents relevant to issues in the litigation". (para 36) Doust v. Schatz, 2002 SKCA 129 (CanLII) Parallel citations: (2002), 32 R.F.L. (5th) 317; (2002), 227 Sask. R. 1 Date: 2002-11-26 Docket: CA02129;462. Tallis J.A. "A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action. The process of discovery of documents in a civil action is central to the conduct of a fair trial and the destruction of relevant documents undermines the prospect of a fair trial." (para 27) HSBC Bank Canada v. Creative Building Maintenance Inc., 2006 CanLII 18361 (ON S.C.) Date: 2006-05-26 Docket: 06-CL-0006425. Cumming J. "THIS COURT ORDERS that unless otherwise ordered by this Court or authorized or agreed to by the Receiver, the Individuals shall not: (a) part with the possession or control of any and all of the Records or monies appropriated from HSBC, RoyNat, and KeyBank; (b) hide, destroy, or deface the Records; (c) directly or indirectly remove anything with a market value in excess of $25,000 from the property known municipally as 2205 Dunwin Drive, Mississauga Ontario L5L 1X1 (the "Headquarters") or such parts of the Headquarters as are in the Individuals' control. (d) erase or delete from any means of electronic storage or transmit any of the Records from the Headquarters or alter, deface, discard, conceal or destroy in any manner any of the Records or any-other thing in their possession; or (e) activate or operate either locally or remotely from any location away from the Headquarters or access or alter any Records stored in any location remote from the Headquarters that may constitute the Records." (para 10) See also Nicolardi v. Daley, 2002 WL 35652 (Ont. Master) SpoliationNEW Cerkownyk v. Ontario Place, 2009 CanLII 62065 (ON S.C.) 2009-10-22 Master Brott. In this personal injury case, the defendants sought to compel the plaintiff to produce her computer. Plaintiff's counsel advised the solicitor for the defendants that “the plaintiff’s computer became corrupted and the information was not retrievable after a professional attempted to save her data. The plaintiff took several captures which show the corruption of the hard drive.” Plaintiff’s counsel offered to consent to an amendment of the Statement of Defence to plead spoliation of evidence. (para 5) The defendants further assert that there is no credible evidence that the computer was destroyed and accordingly the court must ignore all of the responding evidence and order that the computer be produced for inspection. (para 9) The Master wrote that the proceeding had gone astray, and that whether or not the computer was corrupted or was still available, plaintiff's counsel had sworn an Affidavit that the computer was no longer available, and that it would be at trial where the plaintiff would be asked to explain on cross-examination the whereabouts of her hard drive and the actual computer. See Dan Michaluk's summary here. Kulynych v Manitoba Lotteries, 2009 MBQB 187 (CanLII), 2009-06-30, Spivak J. Videotape evidence that the plaintiff was wearing sunglasses at the time of a fall that caused an injury to her wrist was "no longer in existence" despite advice to the surveillance department to hold the tape for 36 months. However, evidence from the investigative security officer who had seen the videotape and had watched the incident as it happened was considered credible by the court. The court also found there was no evidence of intentional or deliberate destruction that would justify a spoliation inference. Jay v. DHL, 2009 PECA 2 (CanLII), 2009-02-13, S1-AD-1151, Chief Justice D.H. Jenkins. "Appeal from decision of motions judge striking out the statement of defence for failure to produce documents - Appeal allowed, and relief granted to the appellant under Rule 30.08 by making such other order as is just." Dan Michaluk's summary is here. Holland v. Marshall, 2008 BCCA 468 (CanLII) Date: 2008-11-18 Docket: CA034582 • CA035819. The Honourable Madam Justice Rowles. "Justice Brooke stated his understanding of the law of spoliation based on four case authorities to which he was referred by counsel for the respondents. The following is a summary of what was stated: 1. A rebuttable evidentiary presumption arises where evidence of spoliation exists; the doctrine of spoliation is an evidentiary rule raising a presumption and not an independent tort giving rise to a cause of action (St. Louis v. Canada (1896), 25 S.C.R. 649). 2. In an appropriate case, destruction of documents carries a procedural but not substantive remedy, an action for damages cannot be sustained solely on the ground that documents have been destroyed (Endean v. Canadian Red Cross Society 1998 CanLII 6489 (BC C.A.), (1998), 48 B.C.L.R. (3d) 90 (C.A.)). 3. Spoliation requires four elements in evidence: a) the evidence has been destroyed; b) the evidence destroyed was relevant to an issue in the lawsuit; c) legal proceedings were pending; and d) the destruction of documents was an intentional act indicative of fraud, or an intention to suppress the truth (Dyk v. Protec Automotive Repairs 1997 CanLII 2114 (BC S.C.), (1997), 41 B.C.L.R. (3d) 197 (S.C.)). 4. There is no common law duty of care to preserve property which may possibly be required for evidentiary purposes; such an obligation can only be imposed by court order granted pursuant to the Rules of Court (Dawes v. Jajcaj, 1999 BCCA 237 (CanLII), 1999 BCCA 237, 66 B.C.L.R. (3d) 31, aff'g 1995 CanLII 2726 (BC S.C.), (1995), 15 B.C.L.R. (3d) 240, leave to appeal ref'd [1999] S.C.C.A.. No. 347). (para 55) McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 (CanLII), 2008-10-30, Conrad J.A. An analysis of the law of spoliation in Canada starts at para 15. Of particular interest is the discussion of unintentional but negligent destruction of evidence. “Spoliation should not be confused, however, with the unintentional destruction of evidence. This may also give rise to a remedy, but the remedy will be founded on other principles. For example, where the opposing party is put to the task of having to prove its case through the use of other evidence, in circumstances where it could reasonably have anticipated that the evidence would exist, an award of costs might be appropriate. In addition, the courts have a broad discretion to fashion remedies to avoid abuse of process, and the court’s rules of procedure are designed to assist the parties in ensuring trial fairness. Obviously, where the goal is to award remedies to even the playing field, the reason for destruction is less important. Generally such remedies are covered, and should be covered, through application of existing practice rules (or the development of further rules) and the exercise of the court’s discretion to avoid an abuse of process or award costs. Intention may not be necessary in those circumstances. But the unintentional destruction of evidence is not spoliation, and it is not appropriate to presume that missing evidence would tell against the person destroying it where the destruction is unintentional and the trier of fact cannot draw the adverse inference that the evidence was destroyed because it would tell against the spoliator.” (para 25) Canadian law of spoliation is summarized in para 29. Galenzoski v. Awad, 2007 SKQB 436 (CanLII) Date: 2007-11-23 Docket: QBG 2157/04 JCR Hunter J.A. The Court dismissed the claim because there was no duty to preserve the records at the time they were destroyed, which was before litigation was filed, apparently pursuant to a routine records management process and in accordance with a compliant records retention period. The Court did not comment on whether litigation was reasonably foreseeable at the time the records were destroyed. (para 174) Jay v DHL, 2008 PESCTD 13 (CanLII) Date: 2008-02-13 Docket: S1 GS-18505. Kenneth R. MacDonald J. In a case involving loss of opportunity costs (among other claims), the plaintiff has sought disclosure of evidence of revenue by other contractors working for the defendant in the form of copies of waybills and associated invoices showing the weight and dimensions of the packages delivered. The plaintiff has been requesting this information since 2003 and successfully moved for an order for its production in January 2006. Having not received it by late October 2006 the plaintiff moved to strike out the statement of defence. The court delayed judgment to give the defendants more time to produce the documents. The plaintiff again moved to strike the defendants’ pleadings in May 2007 and that motion was heard in November 2007. At that hearing the Senior VP of the defendant reviewed the processing of waybills and invoices in Canada. Since 2000 paper copies of waybills had been scanned and destroyed after 9 months. The policy continued even after the plaintiff had specifically requested the information in 2003. Paper waybills represent about 30% with the remaining transactions being processed electronically. All computer facilities are centralized in the U.S. In October 2005 the computer system crashed, losing critical information. Evidently backup processes had not been strictly followed, and although the images could be recovered, the indexes by which the transactions/waybills would be searched were irretrievable. Using alternate approaches the defendant has been able to produce some of the information, but not the dimensions and weight requested. The court dismissed the statement of defence and recommends that the plaintiff proceed with a motion for default judgment. Vescio v. Garfield, 2007 CanLII 24676 (ON S.C.) 2007-07-03 Docket: 03-CV-245266CM2 Moore J. Case involving missing hospital records in the case of a child who subsequently became very ill and disabled. Plaintiff alleges spoliation. "224] The plaintiffs also assert that non-preservation of documents in contravention of a duty to preserve the documents, whether the result of intentional or negligent acts or omissions, raises the doctrine of spoliation and an adverse inference against the defendants." "[237] Again I note that the absence of records has not hampered the plaintiffs’ experts in reaching their conclusions. The available records are sufficient in number, nature and content, when read in concert with the evidence of the very people who saw Isaac that day, to establish that Isaac was healthy, not jaundiced and was feeding well at the time of his discharge on Sunday." Inform Cycle Ltd. v. Rebound Inc., 2007 ABQB 319 (CanLII) 2007-05-16 Docket: 0501 02030 D.L. Shelley J. The Plaintiffs "suggest that the Rebound Defendants have disposed of electronic evidence or failed to preserve it but do not indicate what this evidence might be...they fail to indicate what these documents might be and confirm that through the course of cross-examination there were documents which were identified which were subsequently produced by way of undertaking. They do not indicate what additional documents the Rebound Defendants have failed to produce." (para 20) The Court dismissed the claims. Arrow-West Equipment Ltd. v. GDT Trading Ltd., 2006 ABQB 762 (CanLII) Date: 2006-10-17 Docket: 0503 07699. L. Darlene Acton J. An application to find the Defendants in contempt of court for swearing a false affidavit, destruction or manipulation of evidence of a laptop, and failure to attend Examinations for Discovery. The court was not satisfied beyond a reasonable doubt that the Plaintiff has proven that the Defendants manipulated the evidence or destroyed or permanently deleted any of the Plaintiff’s data... While the Plaintiff has not proven that there was manipulation of evidence which would amount to contempt of Court by the Defendants, the activity which took place on the computer does raise suspicions. (paras 41 and 42). Defendants declared to be in civil contempt for failing to comply with the orders of Lefsrud J. and were fined $5,000 each. Burrill v. Ford Motor Company of Canada Ltd., 2006 CanLII 34271 (ON S.C.) Date: 2006-10-11 Docket: 26726. Heeney J. Liability in a motor vehicle accident. Question of improper assembly of the front left wheel. Although truck and its component parts were made available to all experts on both sides for inspection, the component parts were later lost or destroyed while in the custody of the plaintiff's insurer and could not be produced for exhibit during the trial. Defendant's counsel concedes there is no great prejudice to the defendant because experts had had the opportunity to view the parts. Although the parts were considered relevant and were destroyed while litigation was pending, the Court concluded the the allegation of spoliation was not proven because there was no evidence to support that the parts had been destroyed for fraudulent purposes or to suppress the truth. (paras 123-127). Relies on Dyk v. Protec Automotive Repairs, 1997 CanLII 2114 (BC S.C.) for an analysis of American and Canadian case law. Western Tank & Lining Ltd. v. Skrobutan et al, 2006 MBQB 205 (CanLII) Date: 2006-09-14 Scurfield J. Evidence that the defendants attempted to destroy evidence of their pre-resignation activities by erasing information from their computers attracted an adverse inference that they were probably involved in the direct solicitation of the plaintiff's customers before leaving the employment of the plaintiff. The court also took the spoliation into account to impose more rigorous injunction prohibitions than it would have normally. (paras 20-23) Sussex Insurance Agency.Com Inc. et al v. ICBC, 2006 BCSC 1269 (CanLII) Date: 2006-08-18 Docket: S013226. N. Garson J. After the court dismissed the plaintiff's claim, it applied for an order that the trial be reopened, based on an allegation that the defendant, ICBC, concealed and destroyed documents that were relevant to the plaintiff’s case. The court concluded that the plaintiff has not proven there was a conspiracy or intentional wrong doing on the part of ICBC employees, inside counsel, or outside counsel, charged with managing and conducting the defence of this action, and that none of these documents either individually or when considered collectively would probably affect the conclusions. (para 99 - 103) Spencer v. Quadco Equipment Inc. and others, 2005 NBQB 2 (CanLII) Date: 2005-01-05 Docket: S/C/755/00. William T. Grant J. A nice discussion of the law starting at paragraph 17, in which the court says "The law concerning spoliation in Canada begins with the decision by the Supreme Court of Canada in St. Louis v. R. (1895) S.C.R. 649 which stands for the proposition that where one party destroys evidence there is a rebuttable presumption that the evidence destroyed would have been adverse to that party’s interest." In the following paragraphs there is a discussion of the case law in various jurisdictions, including the U.S. cases Silvestri v. General Motors Corp., 2001 U.S.App. Div. LEXIS 24413 (4th Cir. 2001) and Northern Assurance Co. v. Ware, 145. FRD 281, 283 (D. Me. 1993). Dreco Energy Services Ltd. v. Wenzel, 2006 ABQB 356 (CanLII) Date: 2006-05-12 Docket: 0203 12910. S.J. Greckol J. A large corporate commercial and intellectual property suit. After a fine was imposed by the judge because answers to undertakings were not delivered to counsel for the Plaintiff, the Defendant appealed the fine. The Court of Appeal (Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 (CanLII) considered new evidence that certain computer records were destroyed or erased. The CA remitted the order back to the court, saying "In terms of the sanction for contempt, we are of the view that the amount ordered is not adequate for its purpose. Requiring those in contempt to pay a part only of thrown-away costs related directly to the contempt does not bring home to the contemnors the seriousness of their actions and their responsibilities for the consequences attributable to that contempt. There is a public policy aspect to this entire issue. Generally, in principle, those who are found in civil contempt ought, at a minimum, to be required to accept responsibility for a substantial portion of the costs directly related to that contempt. It may be that a judge would also consider it appropriate to impose further monetary penalties or other sanctions, whether including striking of pleadings, drawing of adverse inferences, etc." (para 9) The CA went on to suggest seven considerations for assessing which sanctions should be imposed, which the judge used in her analysis. (para 10). The Court ordered the Defendant to pay the Plaintiff's "throw-away" costs, amounting to $136,146.27, plus GST, and to take all available steps to try to retrieve the information that has been lost and are to bear the costs of those efforts in any event of the cause. If the computer files cannot be retrieved, pursuant to Rule 704(1)(c), the Defendants are to pay a fine of $75,000.00, for which they will be jointly and severally liable. (paras 53,54) Brandon Heating & Plumbing (1972) Ltd. et al v Max Systems Inc., 2006 MBQB 90 (CanLII) Date: 2006-04-10 Docket: CI 99.02.00265. Mykle J. "The plaintiff knew from the pleadings that the computer hardware and network operating system were relevant to this action. In fact, the plaintiff was specifically asked, and undertook, to preserve the hardware in the state that it was at the time of the discovery, for the purpose of inspection." (para 26) "The destruction of the hardware required a willful act on the part of the plaintiff, and was a clear breach of the undertaking not to do this until advised as to whether it would be inspected. At the very least, it shows a careless disregard for the undertakings given." (para 27) North American Road Ltd. v. Hitachi Construction Machinery Company, Ltd., 2005 ABQB 847 (CanLII) Date: 2005-11-14 Docket: 0003 08116. C.P.Clarke J.C.Q.B.A. "The Applicant submits that the Respondents had a duty to preserve this evidence in the face of the pending or anticipated litigation. The Applicant also argues that as remedy for the spoliation that occurred, it should be given access to the material information gleaned from the Respondents’ expert reports, so as to level the evidentiary playing field. (para 18) The Applicant suggests that the Court has a broad power to sanction for spoliation arising from the inherent power of the Court and from the sections 12 and 14 of Queen ‘s Bench Civil Practice Note No. 1. (para 19) Netbored Inc. v. Avery Holdings Inc., 2005 FC 1405 (CanLII) 2005-10-14 Docket: T-2289-03. Hughes, J. This is an application for a review of the execution of an Anton Piller Order granted by this Court on December 15, 2003, to convert an interim injunction granted ex parte that same date into an interlocutory injunction and, for a show cause order in respect of allegations of contempt of the Anton Piller Order against one of the Defendants. S.E. had knowledge of the Order which included in its terms, particularly paragraphs 7 and 9(a) a requirement to identify and turn over material containing the Plaintiff's copyrights. While the judge held that this Order is vague and ambiguous, a reasonable person would properly be expected to know that the hard drive of his computer is a most probable place where copyright material of whatever description relevant to the issues here is likely to be found. A prudent, honest, person would have quickly advised his lawyers of its existence, taken steps to preserve its contents, and turn it over for inspection when appropriate. (Italics P.D.) This is even more evident when one considers that his sister's computer was quickly identified and preserved for just such a purpose. Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 (CanLII) 2005-06-06 Docket: 0403-0234-AC. Fraser, C.J.A. The Court of Appeal lays out seven factors for consideration when assessing possible sanctions: "1) the role of counsel, including the extent to which the actions of the respondents’ counsel might have contributed to the respondents’ contempt; (2) the motivation for the destruction/erasure of the computer records while the undertakings to produce them remained extant; (3) the consequences flowing from the destruction of those records and what redress should flow from that, including consideration of whether any adverse inferences should be drawn as a result thereof; (4) the entire context and history of the litigation; (5) the amount of reasonable thrown-away costs properly incurred; (6) the nature of the contempt; and (7) the degree of culpability of the contemnors." iTrade Finance Inc. v. Webworx Inc., 2005 CanLII 9196 (ON S.C.) Date: 2005-03-24 Docket: 03-CV-246248CM4. A. Karakatsanis J. The plaintiff moved for a finding of contempt of court by the defendant based on non-disclosure of a laptop and the use of Evidence Eliminator to destroy data on the laptop when it was eventually produced. The court found findings for contempt. Logan v. Harper, 2003 CanLII 15592 (ON S.C.) Date: 2003-10-17 Docket: 94-CQ-056153. Master MacLeod. "There is debate about whether or not an emerging tort of spoliation exists. Spoliation may not be a tort. It is an evidentiary doctrine. This means that if appropriate a negative inference may be drawn against a party that destroyed relevant evidence. Document destruction must be disclosed." (para 42). Cheung v. Toyota Canada Inc., 2003 CanLII 9439 (ON S.C.) Date: 2003-02-10 Docket: 98-CV-149812. Hoy J. Spoliation claim based on failure to preserve the van and destructive testing of the rear axle of the van prior to Toyota having notice of the accident or the claim. Accident occurred in 1996. Ewaschuk J issued a preservation order in September 2001, requiring “all photographs, data, findings and opinions arising out of the investigation, examination or testing of the van, except for documents for which privilege was claimed.” Also required for production were the component parts in possession of the Estate’s expert. Photographs taken 6 weeks earlier than those of the Estate show contradictory evidence about the state of the component. When asked to produce the tires, the Estate’s expert could not, and was also unable to provide an explanation. The Court ordered that “the Estate is precluded from adducing or relying on any reports or other evidence to the extent that it relates to or is in any manner based upon the missing tires.” Report on Spoliation of Evidence, BCLI Report No. 34 November 2004, published by the British Columbia Law Institute. BCLI is the effective successor to the Law Reform Commission of British Columbia, which ceased operations in 1997. "When evidence is destroyed, mutilated, altered, or concealed both litigants and the civil justice system suffer. Spoliation of evidence can cause courts to render decisions on imperfect evidentiary records, frustrate litigants in the prosecution of their actions, and, in extreme cases, deny people the opportunity to obtain a legal remedy even though they have suffered harm. This Report examines those evidentiary and procedural rules and discusses proposals for the further development of the law." Dawes v. Jajcaj et al., 1999 BCCA 237 (CanLII) Date: 1999-04-14 Docket: CA021160. Written reasons by The Honourable Mr. Justice Finch. "[69] At present therefore, the principle of spoliation remains simply an evidentiary presumption which can, as the cases indicate, be rebutted. There is no common law duty of care to preserve property which may possibly be required for evidentiary purposes. An obligation to preserve property can only be imposed by court order granted pursuant to the provisions of British Columbia Rules of Court, r.46(1). What remedy might flow from the intentional, or negligent, breach of such an order is a question which does not arise in this case." NEW Discovery PlanNEW Rule 29.1 of the Ontario Rules of Civil Procedure was introduced in January 2010 and requires the preparation of a discovery plan. Section 29.1.03(3) states that the plan shall include:
Proportion and Marginal UtilityNEW Rule 1.04 (1) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194, says, "These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1)." Rule 1.04 (1.1) adds "In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2." NEW Rule 29.2.03 (1) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194, says, "In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
Rule 216.1 of the Alberta Rules of Court says:
Rule 1(5) of the British Columbia Supreme Court Rules says:
Rule 68 (Expedited Litigation Project) of the British Columbia Supreme Court Rules. In September 2005, Rule 68, Expedited Litigation Project Rule, was introduced to facilitate the efficient conduct of Supreme Court cases where the dollar-value of the claim is $100,000 or less, exclusive of interest and costs. It was introduced as a two year pilot project in the Vancouver, Victoria, Prince George and Nelson registries. Rule 68 limits pre-trial procedures and evidence that can be called at trial. It also requires each of the parties to disclose information to the other party early in the litigation process. Note that new Rules come into effect in July 2010. NEW Bell ExpressVu Limited Partnership v. Heeren, 2010 ONSC 665 (CanLII), Date: 2010-01-27 Docket: 07-CL-6981. Marrocco J. Plaintiff moves for for an order compelling the defendant, Wilhelmus Heeren, to further review the contents of computer hard drives which are in his possession, control or power, and to again search for and identify relevant documents. In addition, the plaintiff seeks an order requiring Wilhelmus Heeren to deliver a further and better affidavit of documents.The plaintiff had executed an Anton Piller Order, and in the absence of objections or claims of privilege, was given a copy of the disk for searching and found a number of documents that the defendant had not listed on his affidavit. The court points out that the plaintiff has all the documents (i.e. has a full copy of the disk), so there is no need for the defendant to produce any further affidavits of documents or productions. The court dismissed the motion. See here for Dan Michaluk's summary. NEW 4145356 Canada Limited v. The Queen, 2009 TCC 480 (CanLII), Date: 2009-09-28 Docket: 2008-2315(IT)G . Campbell J. Miller J. In this tax matter, the respondent (the Crown) asks for "any correspondence, emails and other documents exchanged between the Bank of America group and the Royal Bank of Canada group in connection with the discussions and negotiations leading to this transaction". "The Appellant has concerns that this email discovery will be time consuming, is far too broad, and at best, may only produce some evidence of subjective intention..." (which is not admissible). The court recognized that the request was not a fishing expedition, but narrowed the ambit of the request to the four key players, two at each bank, for the 6 month period during which the appellants were in email negotiations. NEW First Choice Capital Fund Ltd. v. First Canadian Capital Corp., 2000 SKQB 403 (CanLII) Date: 2000-09-29 Docket: QB 1757/96 JCS. Baynton J. Not a *new* case, but included for its approach to the broad nature of the documentation sought, which might "well take months to amass and thousands of square metres to store." "The first is to limit the discovery and production order to those individual plaintiffs who have been selected for the test case. The second is to limit the time focus of the order to the status of the respective individual plaintiffs during the period of time they received the offering memorandum and acquired the investments that are the subject of this lawsuit. The third, as suggested by the solicitor for Blewett & Blewett and Company, is to provide for discovery and production of the documents set out in the first category in two stages. The first stage would consist of a statement or affidavit prepared by each individual plaintiff involved in the test case outlining his or her net worth, summarizing his or her business experience, and setting out in general terms the nature of the documents in his or her possession or power which would establish or support the information given in the statement or affidavit. The second stage (if Deloitte deemed it necessary to bring a more focussed application) would consist of an order for disclosure of specific kinds of documents." (para 22) NEW Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65. 2009-10-08 "What is clear from these different sources is that the purpose of art. 4.2 C.C.P. is to reinforce the authority of the judge as case manager. The judge is asked to abandon the role of passive arbiter. At first glance, this case management function does not mean that it would be open to a judge to prevent a party from exercising a right. However, the judge must uphold the principle of proportionality when considering the conditions for exercising a right." (para 67) NEW Pearson v. Inco Limited, 2009 CanLII 37928 (ON S.C.) 2009-7-10 Cullity J. In his decision to grant in part a motion to compel answers to numerous questions, the court weighed various factors in concluding which answers to compel, and that the party demanding the answers should pay the costs of the expert required to answer them. The court quotes with approval Master MacLeod's January 21, 2008 decision in Yvonne Andersen v. St Jude Medical (Court File No.: 00 - CV - 195906 CP)., "Of course discovery remains a court supervised process in which the Rules provide the default position or starting point. The court has discretion to either expand or restrict discovery and production in appropriate cases. At the risk of over generalising, it is fair to say that discovery will be expanded if necessary to gain access to critical and probative evidence and it will be restricted if technical application of the rules will result in onerous and expensive production out of all proportion to the particular issue. In the case of electronic data, a liberal dose of collaboration and common sense may go a long way." The court also quotes Master MacLeod's 2003 decision in 1176560 Ontario Limited v. The Great Atlantic & Pacific Company of Canada Ltd (captured in this digest). NEW 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd., 2003 CanLII 21408 (ON S.C.) Master MacLeod discusses the exercise of discretion by the court to control the discovery process in paragraphs 11 and 12. "Control of the process by the court may take different forms. Firstly, even relevant inquiries may be restricted if they are unduly onerous or abusive. Secondly, the court may direct that the party requiring discovery or production that appears to be relevant but not essential shall pay the cost. Thirdly, in complex cases, it may be necessary to provide for managed production and discovery where the court plays an active ongoing role in managing the process. In the latter situation, it may be necessary to examine the information uncovered by a particular level of production and to refine the issues in dispute before determining if a more detailed level is required. It may even be necessary to put the parties to certain elections concerning their position at trial before determining the extent of production or discovery." NEW Bishop v. Minichiello, 2009 BCSC 358 (CanLII), 2009-4-7, T.J. Milnick J. Defense seeks production of the hard drive on the plaintiff's computer for the purpose of isolating and producing information to determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning each day. The court noted that the computer was used by all members of the family and not just the plaintiff, so there are privacy issues to consider, and that an order for the production of the entire drive would essentially be an order for a search (para 49). "The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents. Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life. In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege. For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff’s family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case. I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed." (para 57) See also Bishop v. Minichiello, 2009 BCCA 555 (CanLII), 2009-12-08, where the court dismissed the application for leave to appeal the decision narrowing the scope of the search of the computer - applicant had originally sought Hotmail and website activity as well as Facebook. Air Liquide Canada Inc. v. Ferus Inc., 2009 ABQB 280 (CanLII), 2009-05-06, A.G. Park J. Plaintiff claims that financial records sought by the defendant relate to tertiary lines of inquiry and are of marginal probative value, and that disclosure could prejudice the business interest because the defendant is a competitor. The court recognized that "(a)n overly broad financial disclosure order could lead to substantial prejudice to Air Liquide which can be out of all proportion to any relevance that disclosure might have to the issues in the action." (para 25) However, it decided "(the) questions proposed by Ferus are relevant, material and directly related on a secondary relevance basis to the damage claims advanced in the pleadings. Ferus has met its onus of proving it requires the following specific information in order to resolve the issue of Air Liquide’s alleged damages." (para 33) To guard against possible prejudice to the plaintiff, the court granted a confidentiality order or sealing order. B.C. Bottle Depot Association v. Encorp Pacific (Canada), 2009 BCSC 403 (CanLII), 2009-02-13, S. Griffin J. Citing both Murao and Stephen, the Court ordered production of the sought-after documents, finding that the probative value of those documents outweighed any confidentiality or privacy concerns and that collection of the document would not be overly burdensome to the Defendant. Stephen v. McGillivray, 2008 BCCA 472 (CanLII), 2008-11-19. D. Smith J.A. Interpretation of Rule 26(1.2. The court agreed with the respondent that the intention of the rule was “to provide an exemption from R. 26(1) where reasons of time, cost, efficiency and marginal relevance make it impracticable to rigidly apply the rule”. Comparison to Rule 230 of the FCC: “On motion, the Court may relieve a party from production for inspection of any document, having regard to (a) the issues in the case and the order in which they are likely to be resolved; and (b) whether it would be unduly onerous to require the person to produce the document. Decisions interpreting the federal rule have excluded production of relevant documents in the interests of time constraints, efficiency, and marginal or no relevance: Apotex Inc. v. Merck & Co., 2002 FCT 626 (CanLII), 2002 FCT 626, 19 C.P.R. (4th) 460, and Eli Lilly & Co. v. Apotex Inc. 2000 CanLII 16043 (F.C.), (2008), 8 C.P.R. (4th) 413 (F.C.T.D.); aff’d 2001 FCA 141 (CanLII), 2001 FCA 141,12 C.P.R. (4th) 127. These considerations and others, including cost and volume of documents requested in relation to the issue to be determined, have also been considered in applications for exemption under R. 26(1.2). Mentions Murao v. Blackcomb Skiing Enterprises, 2003 BCSC 558 (CanLII), where the court refused the application for exclusion from production based on burden, reflecting that the seriousness of the plaintiff’s injuries (he was now a quadriplegic) and the relevance of the information warranted its disclosure. Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII) Date: 2008-06-11 Kairos Community Development Ltd. v. Nova Scotia (Community Services), 2007 NSSC 330 (CanLII) Date: 2007-11-14 Docket: SH 265555. Suzanne M. Hood J. Dispute about service fees and rates. Plaintiff seeks production of “documentation related to the service fees and rates (including but not limited to administrative fees and mileage rates) that the Defendant has paid to other service providers who provide supervised apartments and group homes for persons with mental health and disabilities in Nova Scotia, for the period of 1998 to present.” Question of relevance and burden to produce. The plaintiff says that this documentation is necessary in order for it to establish its loss and says therefore that it is clearly relevant. (para 20) Based upon the information before me, I conclude that the documentation with a semblance of relevance does not include documentation outside the so- called Central Region. (para 25) “It is perfectly clear that these documents, although stored in a disorganized fashion, are within the control of the defendant. I conclude that it is not unduly burdensome in all the circumstances of this case for the defendant to produce the documentation which I have concluded to be relevant. The plaintiff has no other way to obtain documentation which is critical to its case and should not be left without the opportunity to proceed with its lawsuit because of the fashion in which the defendant keeps its records. Nor do I conclude that this is one of those exceptional cases where the party requesting the documentation should pay for its production. If the records were kept in a different fashion, it would not be difficult to produce them. It is not the fault of the plaintiff that this is not the case.” (para 44) “The defendant may be able to obtain it more easily from some of the service providers who may have kept their records, which would be smaller in number, in a more accessible fashion than those of the defendant. The possibility that this could occur does not affect the order which will flow from my decision, but it is an option that the defendant may wish to explore.” (para 49) paras 29-33 outline burden. Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770 (CanLII) Date: 2007-05-31 Shabbits J. Plaintiff applied with mixed success for an order for further production. Paras 18-24 review the law of disclosure in BC, pointing to recent decisions where the court has used its discretion to limit discovery where the request has been too broad, too onerous, duplicative, or where the documents sought do not have significant probative value. Contour Optik Inc. v. Viva Canada Inc., 2005 FC 724 (CanLII) 2005-05-19 Docket: T-1927-02 Richard Morneau Prothonotary. The Court quotes Reading & Bates Construction Co. et al. v. Baker Energy Resources Corp. et al. (1988), 24 C.P.R. (3d) 66, stating "Mr. Justice McNair, in a general six-point reminder, first defines, in points 1 to 3, the tests for relevance of a question or document, and then itemizes in points 4 to 6 a series of circumstances or exceptions in which, at it happens, at the end of the day, a question need not be answered or a document need not be produced." In particular, 4 says "The court should not compel answers to questions which, although they might be considered relevant, are not at all likely to advance in any way the questioning party's legal position"; 5 says "Before compelling an answer to any question on an examination for discovery, the court must weigh the probability of the usefulness of the answer to the party seeking the information, with the time, trouble, expense and difficulty involved in obtaining it. Where on the one hand both the probative value and the usefulness of the answer to the examining party would appear to be, at the most, minimal and where, on the other hand, obtaining the answer would involve great difficulty and a considerable expenditure of time and effort to the party being examined, the court should not compel an answer. One must look at what is reasonable and fair under the circumstances" (underscored by the Court); and 6 "The ambit of questions on discovery must be restricted to unadmitted allegations of fact in the pleadings, and fishing expeditions by way of a vague, far-reaching or an irrelevant line of questioning are to be discouraged". (underscored by the Court.) Strata Plan LMS 3851 et al v. Homer Street et al, 2006 BCSC 1362 (CanLII) Date: 2006-09-08 Docket: S76792 J. Truscott J. “[17] Chief Justice McEachern in Boxer v. Reesor et al (1983), 43 BCLR 352, accepted that there must always be a reasonable limit to production of documents and a reconciliation between the right to full disclosure with the proper management of the trial process. Mr. Justice Myers in Desgagne v. Yuen, 2006 BCSC 955 (CanLII), 2006 BCSC 955, refers to it as a matter of common sense." Farris v. Staubach Ontario Inc., 2006 CanLII 19456 (ON S.C.) Date: 2006-05-24 Docket: 03-CV-259605CM 3. Master Hawkins. "That is the cost side of a cost/benefit analysis of this motion. The benefits of the requested searches and documents relevance review seem to me to be minimal. No one can guarantee that the whole exercise will fail to turn up a single new relevant document. Having said that the plaintiff is, on the evidence before me, unable to identify a single relevant document which is apparently in the possession, control or power of TSC which it has yet to produce or which the proposed searches will reveal. The plaintiff does not submit that documents already produced point to the existence of a single relevant document which TSC has failed to produce." (para 23) Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen, 2006 BCSC 554 (CanLII) Date: 2006-04-06 Docket: S046775. M.A. Humphries J. This is an application to compel the defendant to produce a Supplemental List of Documents, listing his hard disk drives (“HDD”) and a mirror image copy of those hard disk drives as documents in its possession. The plaintiff wants the mirror-image HDD produced to its own computer expert for a computer forensic analysis. "Without some indication that the application of the interesting technology might result in relevant and previously undisclosed documents, the privacy interests of the third parties and the avoidance of unnecessary and onerous expense militate against allowing such a search merely because it can be done." (para 36) Baldwin is cited by Master Hyslop in Value Analytix Ltd. v. Doman Industries Limited et al, 2006 BCSC 860 (CanLII) Date: 2006-06-02 Docket: 36603, in his refusal to order the production of hard drives. Jaskhs Enterprises Inc. v. Indus Corp., 2004 CanLII 32262 (ON S.C.) 2004-10-01 Docket: 03-CT- 023643 CP;03-CV-257165 CM2. Cullity J. I am satisfied that the demands made on behalf of Osiris in Mr Campbell's letter of February 4, 2004, that it has continued to insist upon, were excessive and unreasonable both in the nature and extent of the information required and the timelines it purported to impose. Mr McLean's description of the demands as "over the top" was in my opinion justified. The ongoing obligations to which the franchisees would be subjected would extend significantly beyond "access" required to provide reasonable protection for the interests of Osiris Inc., in the event that it is successful in the litigation. Its demands are, in my opinion, more consistent with a desire to harass the defendants than to obtain compliance with the order. Nova Scotia (Attorney General) v. Royal & Sun Alliance Insurance Co. of Canada, 2003 NSSC 227 (CanLII) Date: 2003-11-20 Docket: S.H.No.149142. Gerald R. P. Moir, J. Plaintiff applied for an order directing the Defendants to answer a number of interrogatories. The application for one of the interrogatories was supported while the application for the other two were dismissed. In its reasons, the Court said: "Subject to two qualifications, the information sought must be logically and legally relevant. The first qualification recognizes that relevancy is not adequately assessed outside trial. At this stage, one must find a semblance of relevancy. Secondly, in addition to information that is relevant, we allow questions on discovery or through interrogatories which are reasonably calculated to lead to admissible evidence. Finally, there is a discretion to limit discovery where it would be just to do so, such as were the burdens that would be placed upon the party making answer clearly outweigh the interests of the party questioning." (para 8, italics added.) Murao v. Blackcomb Skiing Enterprises Ltd. Partnership, 2003 BCSC 558 (CanLII), 2003-04-10, J Sinclair-Prowse J. In this personal injury case, the plaintiff had been rendered a quadriplegic at the age of 17 while riding in the snowboard park at Blackcomb Mountain. Although the defendant had already produced all reports of snowboarding accidents that had occurred that year in the snowboard park, the plaintiff sought accident reports from several previous years. The defendant sought an exemption from this further production under B.C. Supreme Court Rule 26(1.2) . The Court recognized that the production sought would be costly and time consuming but decided this was outweighed by the relevance of the additional documents sought and the seriousness of the plaintiff’s injuries. In obiter commentary, the Court stated that it might have ruled differently had the plaintiff’s injuries been less serious. (summary courtesy K.Littmann) Canada (Commissioner of Competition) v. Air Canada (T.D.), [2001] 1 F.C. 219, 2000 CanLII 17157 (F.C.) Parallel citations: (2000), 78 C.R.R. (2d) 134; (2000), 8 C.P.R. (4th) 372; (2000), 186 F.T.R. 49 Date: 2000-07-21. Reed J. The burden of producing e-mail was raised in this case dealing with anti-competitive behaviour by Air Canada. Air Canada argued that a section 11 Order under the Competition Act would require it to search four years' worth of the 6,000 - 12,000 e-mails received by each relevant employee annually and spend two to three weeks recreating the file for e-mail received more than six months prior to the order. Moreover, it argued that e-mail from only the most senior employees should be included in the search since junior employees would not be involved in policy. While the Federal Court found that the production request made by the Commissioner for Competition was not irrelevant to the inquiry, the court ultimately did not rule on the issue, since the parties agreed to negotiate with respect to the scope of the request. Peter Kiewit Sons Co. of Canada Ltd. (c.o.b. Kiewit-Ceco) v. British Columbia Hydro & Power Authority, 1982 CanLII 575 (BC S.C.), March 26, 1982. McEachern C.J. "One of the matters in issue between these parties is the extent to which the Plaintiffs may require production and inspection of documents relating to this and other contracts which were underway at the same time as the contract in question." (para 12). Plaintiff was seeking an order for production of more documents. The Court concluded "It does not follow that this motion should be dismissed because, notwithstanding the foregoing, every reasonable effort must be made to enable the Plaintiffs to locate any documents which may assist the parties to ascertain the truth. What is not permissible, or reasonable, in my view, is to require a party, in a case such as this, to incur enormous expense in what may be a futile search for something which may not exist." (para 24, italics added). "I would give consideration to any reasonable proposal the parties may make regarding the foregoing. If they cannot agree, then, in order to make an effective order, I would direct only that the Plaintiffs may apply again for an affidavit, and subsequent inspection, of documents which may be uncovered by a search of greatly reduced scope. To put it differently, the Plaintiffs must choose a smaller target within B.C. Hydro. As is well known, B.C. Hydro is the largest enterprise in the Province, and the Plaintiffs must define a more manageable area for enquiry. In addition, the Plaintiffs must establish a prima facie case that something relevant will be uncovered before a further affidavit and further inspection will be ordered." (para 27, italics added). "Upon any such further application I would expect a senior responsible officer of B.C. Hydro to verify on oath the extent of its production to date, the magnitude and estimated expense of the search required to satisfy the further production which is being sought, and such further circumstances as may be necessary to enable the Court to decide whether a further search will be fruitful. In addition, I would expect such deponent to verify, upon grounds which are stated, what his belief is regarding the likelihood of further relevant documents being uncovered. " (para 28, italics added). Document Retention PoliciesCarleton v. Beaverton Hotel, 2009 CanLII 4245 (ON S.C.) 2009-2-6. Docket: 23745/03. Lauwers J. In a personal injury case claiming loss of income, the plaintiff has not produced evidence of income levels before and after the accident. Defendant moved to dismiss the action. "There are different views that can be taken of the allegations made by the defendants in this case. The first is that Mr. Carleton has deliberately avoided his record-keeping obligations and refused to comply with the Rules of Civil Procedure regarding the preservation and production of appropriate business records. The second is that Mr. Carleton is simply unable to do so. The third explanation is a combination of the first two, in which Mr. Carleton’s possibly real inability is being used strategically. Each of these possibilities would best be explored through the trial process." (para 26) Weber v. Erb and Erb Insurance Brokers Ltd., 2006 CanLII 9987 (ON S.C.) Date: 2006-03-31 Docket: 661/96 D.J. Gordon J. "[93] Ten years later, it is appropriate an adverse inference be drawn as to the failure to produce the documents results from the documents not supporting the plaintiff’s position. [94] Further, the normal retention period for business records has now expired. There is a strong probability the February 1996 records no longer exist. The plaintiff offers no evidence to the contrary. Failure to produce, or even provide an explanation, supports such an inference. I so find. [95] Accordingly, I conclude there is actual prejudice to the defendant. Without these documents, at the very least, there is a substantial risk a fair trial will not be possible. The action is dismissed." Fareed v. Wood, 2005 CanLII 22134 (ON S.C.) Date: 2005-06-21 Docket: 444/01. D.J. Gordon J. In para 56, the Court writes, "In Sopinka, Lederman and Bryant, “The Law of Evidence”, 2nd. Ed. 1999 Butterworths, at p. 297, the learned authors discuss the inferences that may be drawn where a witness is not produced. The principle is stated as follows: In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation a party litigant does not testify, or fails to provide affidavit evidence on the application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist the party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it." (para 56) "Surely Mr. Wood has knowledge of what transpired. In the absence of evidence, the only inference that can be drawn is that he did know assets were being depleted, that such was improper and that he took no steps to prevent it occurring. In fact, he was an active participant by virtue of redeeming or selling investments when there was no obvious need to do so." (para 60) But compare to: Stevens v. Toronto Police Services Board, 2003 CanLII 25453 (ON S.C.) Date: 2003-11-20 Docket: 01-CV-216238CM2. Juriansz J. "[38] In assessing the evidence I have not drawn any adverse inference from the fact that audio recordings of the police radio transmissions relating to these events were destroyed upon the expiry of their standard retention period. I accept the officers' testimony they were not broadcasting transmissions while chasing and apprehending the plaintiff and so I am satisfied the tapes would not have been helpful. Summaries of the radio transmissions were produced and the destruction of the tapes was innocent." Moezzam Saeed Alvi v. YM Inc. (sales), 2003 CanLII 15159 (ON S.C.) Date: 2003-09-08 Docket: 01-CV-221218CM2. Cameron J. "..... a properly run company should have a documents retention policy requiring retention of files for a reasonable period extending beyond the limitation period for civil cause of action in contract or tort and the limitation period for a reassessment under the Income Tax Act. Failure to do so risks a court making an adverse inference on the absence of evidence." (para 48) Ontario v. Johnson Controls Ltd., 2002 CanLII 14053 (ON S.C.) Date: 2002-12-04 Docket: 00-CV-189963. Cameron J. "Johnson bears substantial responsibility for any loss of its documents. There is no evidence of any document retention or destruction policy. A policy with a short retention period might offer some justification to dispose of "smoking guns" and other prejudicial evidence. Any such policy that permits destruction within much less than ten years after an event probably fails to take reasonable account of the standard six year limitation period under the Limitations Act for actions in tort or contract, plus some period to allow for a discoverability period, which allows for discovery of the damage and those responsible prior to the commencement of the limitation period. A short retention period would also ignore the extended period under s. 8 of the Act." (para 50) "The absence of a document retention policy also constitutes a failure to recognize the court's ability to draw an adverse inference in certain circumstances for failure to produce a document and a failure to address the practical need to retain documents once notice of a proceeding has been received. " (para 51) 36332 B.C. Ltd. v. Imperial Oil Ltd., 2002 BCSC 587 (CanLII) Parallel citations: (2002), 6 B.C.L.R. (4th) 168 Date: 2002-04-23 Docket: C963124. Ross J. "The nature of the problem is such that claims are likely to be raised years after the commercial activity. ... that circumstance, combined with the nature of such cases, suggests to me that commercial prudence would dictate the adoption of document retention policies that preserve the means of investigation of claims." (para 47). Malcolm v. Transtech Holdings Limited et al., 2000 BCSC 943 (CanLII) Date: 2000-06-19 Docket: C940534. Boyd J. "McKenna testified that all of these documents did exist until shortly before his own examination for discovery conducted in March 1999. The records of the 30 companies involved in the Group were stored in a dead storage warehouse in Surrey, B.C. McKenna remarked at trial, that had plaintiff’s counsel asked, the necessary documents could have been preserved and produced. However he insisted that no such demand or request was made and accordingly, having complied with the retention periods set out in the Limitations Act, the Income Tax Act and the Companies Act, he said the documents were destroyed in late 1998 or early 1999. As of that date, this action had been outstanding for some four years." (para 38) "I am satisfied that any sophisticated businessman (and that includes McKenna and his co-defendants) would be well aware that any documents bearing on the issues involved in this action ought to have been produced some years earlier. I infer that no documents were ever produced to verify the “tacit agreement” because no such documents exist." (para 39) Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. (Ontario Statute). Acceptable Use PoliciesInform Cycle Ltd. v. Rebound Inc., 2007 ABQB 319 (CanLII) Date: 2007-05-16 Docket: 0501 02030. D. L. Shelley J.C.Q.B.A. In seeking return of $1,500 he believed the Plaintiff, his former employer, still owed him, an employee of the Defendant used the Defendant's internet connection and computers to register "inform cycle" as a domain name and then redirected it to a pornographic site. Question of whether Defendant is liable for employees actions. Notes in passing that Defendant does not have a written internet policy. Form of productionAdroit Resources Inc. v. Tres-Or Resources Ltd., 2008 BCSC 1211 (CanLII) Fenlon J. Application for further production in a case involving a dispute between two public mining companies that share an interest in mineral claims in the Temagami District of North Eastern Ontario. In particular, the plaintiff seeks electronic copies of Tres-Or's 1,600 emails and other documents which have already been produced by Tres-Or in TIFF format. Tres-Or seeks the electronic versions because of a concern about the authenticity of the documents produced based on plaintiff's admissions of doctoring and fabricating invoices. Tres-Or argues it would have to redo the work because it used TIFF format copies of its documents to review for privilege, duplicates and irrelevant documents. The Court held that it "it is not appropriate to order Tres-Or to produce electronic versions of all of its documents. Emails documenting the process of apparent doctoring and fabrication of invoices have been produced by Tres-Or. The plaintiff therefore has the evidence it needs to prove fabrication from the hard copies produced by Tres-Or. This does not appear to be a case in which a party is trying to cover up its conduct. (para 80) With regard to electronic version of other information, the Court ordered production of spreadsheets and survey data in electronic form since it would be assistance to the experts in preparing reports. Andersen v. St. Jude Medical, Inc., 2008 CanLII 29591 (ON S.C.) Date: 2008-01-21 Docket: 00-CV-195906CP Master Calum MacLeod. This is another in a series of rulings relating to production and discovery issues in this certified class proceeding....This portion of the motion is essentially a request that the defendants produce better copies of the electronic documents and if necessary permit their expert to inspect the original data. Subsequent to the ruling in September 2006, the defendants produced additional data sets in redacted format. N.B. databases are maintained at the University of Pittsburgh under contract with the defendant....The plaintiffs are frustrated with the pace of production and with what seems to them to be proxy objections from the university permitting the defendants to avoid full compliance. Good discussion of discovery and production of electronic information in databases in paras 23-29, including references to The Sedona Canada Principles. In para 31, the court proposes four criteria that must be met so that the plaintiff is on a level playing field. Dan Michaluk summarizes the case here. Shekdar v. K&M Engineering & Consulting Corp., 2007 CanLII 57814 (ON S.C.) Date: 2007-11-20 Docket: 03-CV-246488CM3 Master Sproat. The parties disagreed about how the electronic information was to be produced. Plaintiffs objected to defendant’s proposal that the electronic data be made available via the internet because it would inhibit the unfettered ability to test and analyze the electronic data without the defendants having the ability to monitor such steps. The plaintiff preferred that the electronic data be produced via a memory stick. The Court agreed “that the plaintiff is entitled to conduct its testing and analysis as it sees fit and without any monitoring by the defendants. In my view, such monitoring would destroy the plaintiff’s entitlement to protect his litigation strategy.” (Not clear whether the defendant had proposed to host a website containing the electronic data. Presumably the use of the internet to transfer the data would not pose the same risks. PD) Thomson v. Berkshire Investment Group Inc. et al., 2007 BCSC 50 (CanLII) Date: 2007-01-10 Docket: S053413. R.B.T. Goepel, J. Lists of documents when large volumes of information are involved. Claiming privilege on groups of documents. Cites Blank on the distinction between litigation privilege and solicitor-client privilege. Cites Lowry J. (as he then was) in G.W.L. Properties Ltd. v. W.R. Grace and Co. (1992), 14 C.P.C. (3d) 74 (B.C.S.C.) at ¶ 23: "It is not always possible, nor desirable, that documents be listed individually by date as the plaintiff wishes in this instance. Sometimes, when large volumes of documents are produced, a more worthwhile description can be achieved by grouping documents, or files of documents, that relate to a particular subject, or time period, or geographical location of origin or some other relevant common ground. Groupings of documents may, in some circumstances, be quite large. What is important is that the list provide the party seeking discovery with a meaningful, reliable and complete disclosure as well as an effective aide to retrieving the documents when an inspection is conducted. What is required in each case depends on the nature of the documentation that must be described. In my view, the ingenuity of counsel in the approach taken to drawing a list of documents that serves the purpose of the rule is an essential element of the discovery process, at least in the conduct of complex commercial litigation that involves large volumes of documents generated from a variety of different sources over a period of many years as in this case." (para 69) (Italics P.D.) Andersen v. St. Jude Medical Inc., 2006 CanLII 31906 (ON S.C.) Date: 2006-09-15 Docket: 00-CV-195906CP. Master MacLeod. "The plaintiff seeks access to the SAS database in its native format. This is the database maintained by the University of Pittsburgh utilizing popular software used in clinical studies. ... It has not been demonstrated if and whether the porting to Excel is accurate or complete. The plaintiff’s expert has access to the SAS software and wishes to have the data in native format in order to perform his own analysis. Unlike many data bases which mix relevant and irrelevant information there is nothing in the AVERT data base that is not relevant. ... I accept the request of the plaintiff as a reasonable one. A database is a document under our rules and therefore the data is to be transmitted to the plaintiff’s expert in its native format. Counsel should confer about how to ensure forensic continuity so that there is no doubt the copy is complete and accurate." Jorgensen v. San Jose Mines et al, 2004 BCSC 1653 (CanLII) Date: 2004-11-26 Docket: L023369;S036753. I.H. Pitfield, J. The defendants sought delivery of the electronic database used by the plaintiffs to compile the list of documents. The court held that the use of a software program to facilitate the production of the list is a choice that it made and it is part of that firm's work product, but ordered the defendant to tender $4,000 to the plaintiff’s firm in order to have a copy of the database in electronic form. The $4,000 covered a share of the cost of preparing the database. Logan v. Harper, 2003 CanLII 15592 (ON S.C.) Date: 2003-10-17 Docket: 94-CQ-056153. Master MacLeod. The defendants had produced the documents along with a searchable index in electronic form. The index did not permit full-text searching of the documents, although the version of the application used by counsel for the defendants did offer that feature. The master considered litigation support and document management software not normally subject to disclosure, and accepted as reasonable that plaintiff’s counsel purchase a licence for the software independently in order to have the full-text search feature. Wilson v. Servier Canada Inc., 2002 CanLII 3615 (ON S.C.) 2002-09-27 Docket: 98-CV-158832. Cumming J. the court granted the plaintiff’s motion for an order directing the defendant to release the objective coding of the documents in their litigation support database in order to satisfy meaningful disclosure, given the volume of documents. Cholakis v. Cholakis, [2000] M.J. No. 6 (Man. Q.B) January 11, 2000. Docket: Winnipeg Centre CI 95-01-92830. Monnin J. Information printed as a hard copy may not be enough. The interest of broad disclosure in a modern context require, in my view, the production of the information in the electronic format when it is available.” ( para 30). These same defendants will have a reasonable period of time in which to see whether the electronic program can be modified such that the production of the data is limited to those areas of the financial statements that were ordered to be disclosed in the Order of June 5, 1998. If this cannot be done without impairing the accuracy of the remaining information, then the program and data should be produced in their original form. If the information is provided in a revised format, there should be an accompanying affidavit from these defendants or a party involved in the revisions, providing details as to how the information was modified and confirming that only the irrelevant information has been removed from the program. (paras 34, 35) Meet and conferJDS Uniphase Inc. v. Metconnex Canada Inc., 2006 CanLII 34432 (ON S.C.) Date: 2006-10-16 Docket: 05-CV-31806. Master Beaudoin. In this case the parties attempted to comply with (i.e. the Ontario eDiscovery) guidelines in that they discussed the method of exchanging and producing documents in an electronic format. There was an agreement to this effect reached by the parties on the 12th of December 2005.... Notwithstanding the Plaintiffs’ efforts to produce documents in a common format the Defendants identified deficiencies in the Plaintiffs’ Summation database. Numerous e-mails were exchanged between the parties and their common document-processing company. After some time, an agreement was reached where the Plaintiffs would produce its Summation database with same level of functionality as that of the Defendants (e.g. including the metadata). There was an increased cost in the amount of $26,983.46. The Defendants paid one half of that cost and now seek to have their share reimbursed. (para 8 and 9). Discussion of cost splitting. Sycor Technology Inc. v. Kiaer, 2005 CanLII 46736 (ON S.C.) 2005-12-15 Docket: 04-CV-264018CM 2. Master Calum U.C. MacLeod. Production of documents from electronic sources by the plaintiff, where the cost of printing and photocopying the documents will exceed $50,000. Suggestion of using electronic production and possibly computer experts to identify what exists and what is truly relevant to the issues that are actually in dispute. Parties are to meet and discuss the method and cost of production. First cite of Ontario eDiscovery Guidelines. Reference to the eDiscovery issue of LAWPro magazine. CIBC World Markets Inc. v. Genuity Capital Markets, 2005 CanLII 3944 (ON S.C.) Date: 2005-02-16 Docket: 05-CL-5690;05-CL-5716. J. M. Farley J. "I would expect that the sooner all counsel sit down together to map out a litigation schedule, the better off all parties will be. I would request counsel to jointly advise me of a target date for that schedule to be provided to me. The court expects counsel/parties to work out problems/difficulties as quickly and reasonably as possible and in a practical way while not infringing on anyone’s true rights. If for some valid reason something cannot be accomplished in that regard, counsel should attend upon me at a convenient 9:30 appointment or at a case conference." Logan v. Harper, 2003 CanLII 15592 (ON S.C.) 2003-10-17 Docket: 94-CQ-056153. Master Calum U.C. MacLeod. Before indexing and scanning the documents, it would be useful for the parties to discuss how the documents are to be identified and organized and to agree upon the electronic format for the documents. If the parties can agree on a mutually acceptable system it may well save time, cost and confusion. It may be that Health Canada has an indexing and identification system that it would be appropriate to adopt. Canada (Commissioner of Competition) v. Air Canada (T.D.), [2001] 1 F.C. 219, 2000 CanLII 17157 (F.C.) Parallel citations: (2000), 78 C.R.R. (2d) 134; (2000), 8 C.P.R. (4th) 372; (2000), 186 F.T.R. 49 Date: 2000-07-21. Reed J. "Counsel for the Commissioner noted that, at the time the Commissioner sought the section 11 order, he did not know what the record-keeping practices of Air Canada were. Counsel indicated that in so far as there were real difficulties in responding to the requests, as a result of the form in which they had been asked, this should be the subject of discussion between counsel, before the Court was asked to adjudicate further on it. That aspect of Air Canada's present motion was therefore set aside to allow for such discussion." (para 27.) Process for review of electronic documents for relevance and privilegeAir Canada v. Westjet Airlines Ltd., 2006 CanLII 14966 (ON S.C.) Date: 2006-05-06 Docket: 04-CV-266629CM2. Nordheimer J. "This motion raises the relatively new issue of a party’s obligations regarding the production of electronic documents or “e-discovery” as it is sometimes referred to. Specifically in this motion, the plaintiffs seek an order: (i) confirming that if any privileged documents are inadvertently produced by the parties during its document production, such productions will not constitute a waiver of privilege, and; (ii) confirming that if documents are produced by the parties during the document production process, such production will not constitute an admission of the relevance of all or a portion thereof." Motion was dismissed. Discussion includes references to the American Sedona Principles and the Ontario eDiscovery Guidelines. Disclosure of privileged and private communicationsUniversal Sales, Limited v. Edinburgh Assurance Co. Ltd., 2009 FC 151 (CanLII) Date: 2009-02-12 Docket: T-1148-01. Russell J. A motion to appeal and reverse the decision of the prothonotary concluding that a document inadvertently released was privileged and had to be returned to the plaintiff. “As the Plaintiffs point out, the mere physical loss of custody of a privileged document does not automatically end privilege, especially in the context of modern litigation where large quantities of documents, such as the electronic production of a CD in this case, are exchanged between counsel and accidental disclosure is bound to occur from time to time. In this case, there was neither knowledge on the part of the Plaintiffs when the CD was produced to the Defendants, nor any silence when the Plaintiffs learned of the inadvertent disclosure at the discovery.” (paras 28-29) R. v. David M. DALEY, 2008 NBPC 29 (CanLII) Date: 2008-06-02 Judge Alfred H. Brien. Motion to exclude evidence stored on a hard disk seized by CRA in the course of an investigation of tax evasion. The hard disk included information related to another company that would subsequently be investigated by CRA under a separate warrant (Pine Crest), as well as that covered under the original warrant (Nautica). In granting the motion, the court observed that "the CRA did not take the necessary precautions, after reviewing and determining that they had seized documents to which they were not entitled , to return the documents and protect them from misuse. In this case the CRA agents actually copied and used the documents there after, constituting another breach." (para 46) "In all there was a clear violation of the Accused's section 8 Charter Rights." (para 47) The court acknowledged that "given the nature of storage of computer records and the process of identification and retrieval, seizure of a computer hard drive could inadvertently effect seizure of documents outside the time frame specified in the warrant." (para 31) "However, seizing agents must be mindful both of the potential for intermingled documents in computer searches and the need to exercise discretion in protecting documents seized in such manner." (para 32) Dan Michaluk has a nice summary here. Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (CanLII) Date: 2006-07-27 Docket: 30652. Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ. Headnotes from Supreme Court of Canada: "Civil procedure — Removal of counsel — Plaintiffs’ lawyers seizing electronic documents from defendants’ premises pursuant to Anton Piller order later found to include documents subject to solicitor-client privilege — Plaintiffs’ lawyers conducting partial review of documents — Defendants seeking to remove plaintiffs’ lawyers as solicitors of record — Whether onus on plaintiffs to rebut presumption of prejudice — Whether plaintiffs’ lawyers should be removed." Chan v. Dynasty Executive Suites Ltd., 2006 CanLII 23950 (ON S.C.) Date: 2006-07-17 Docket: 02-CV-223930 CM3. Belobaba J. In a case alleging fraud, conspiracy and breach of fiduciary duty, the defendants moved for removal of plaintiff's counsel. Defendants had inadvertently included privileged documents in their production set and notified plaintiff's counsel as soon as they became aware. Plaintiff's counsel refused to return the documents despite repeated requests, saying in the first instance that the documents weren't privileged and in any case, any privilege had been waived. Court ruled that the firm be removed as the solicitor of record for the plaintiff. Dublin v. Montessori Jewish Day School of Toronto, 2006 CanLII 7510 (ON S.C.) 2006-03-15 Docket: 04-CV-277495CM2. Master Carol A. Albert. The issue is whether an email communication over which Montessori Jewish Day School of Toronto and the other defendants (“Montessori”) claim privilege, and which was inadvertently produced to the Dublin plaintiffs (“Dublin”), ought to be returned and treated as a privileged communication. An issue was that the email was printed from an account other than the original recipients, raising the question of whether privilege had been waived because information had been disclosed to someone else. "The fact that an email from Ms Nashman to Mr. Steinberg was printed from her husband’s account does not mean that it was read by him any more than letter mail addressed to her and placed in the home’s mail slot would be opened by Bruce. There is insufficient evidence to find that Bruce read the email." Motion for the return of the document inadvertently produced was granted. National Bank Financial Ltd. v. Potter; Barthe v. National Bank Financial Ltd.; 1384156 Ontario Inc. v. National Bank Financial Ltd., 2005 NSSC 264 (CanLII) 2005-10-05 Docket: S.H. 206439/208293/216543. Revision to 2005 NSSC 113 (below). J.E. Scanlan J. National Bank Financial Ltd. v. Daniel Potter, 2005 NSSC 113 (CanLII) 2005-05-10, Docket: SH 206439. J.E. Scanlan J. Solicitor-client communications are privileged. In this case solicitors for National Bank Financial Limited (NBFL) did not properly respect solicitor-client privilege of the applicants; Daniel Potter, Knowledge House Inc. (KHI) and Starr’s Point Capital Incorporated. Counsel for NBFL came into possession of KHI servers, including all privileged and private communications. Counsel for NBFL who have been or may have been privy to the contents of the privileged solicitor-client communications were removed. Potter v. Courtney, 2005 NSSC 174 (CanLII) Date: 2005-06-22 Docket: S.H. 235231. Suzanne M. Hood J. Tort of Conspiracy brought by plaintiff against Raymond Courtney of Navigator Technologies, with whom plaintiff had contracted for the disposal of the computer equipment owned by Knowledge House Inc. Plaintiff claims that defendants turned emails over to National Bank Financial, following which Financial sued the plaintiff. Since the legal determination of the tort of civil conspiracy will be based upon facts which will only come out at trial in the KHI matter, the motion to strike the pleadings has been dismissed and this action stayed. National Bank Financial Ltd. v. Daniel Potter et. al., 2004 NSSC 100 (CanLII), Parallel citations: (2004), 224 N.S.R. (2d) 231, 2004-05-14 Docket: S.H.206439. Application by Nova Scotia Barristers' Society to intervene as a friend of the court. Background: the plaintiff Bank came into possession of a server originally owned by one of the defendants, Knowledge House Inc. That server contained e-mails to and from a number of individuals who are party to this or related proceedings. The judge stated the issues reach far beyond the question of the plaintiff getting as much information as it can to prosecute this case or the defendants keeping out. How should lawyers deal with evidence which they know or suspect may include privileged communications? What processes could be instituted when they encounter such as situation? Is the situation different when dealing with electronic communications which may be held in several locations at once? What are the ownership rights of information stored on a server owned by a third party and does it alter the expectations in relation to solicitor-client privilege? What should occur if privileged information is viewed by opposing counsel? These are all questions that go well beyond the specific interests of the parties to the present litigation. How these, and many other issues that may arise, are dealt with may well affect the rights of the public and the administration of justice in many future cases. Autosurvey Inc. v. Prevost, 2005 CanLII 36255 (ON S.C.) 2005-10-11, Docket: CV-05-004518-00. M.G.J. Quigley J. In early May of 2005, the Plaintiff, Autosurvey Inc. (“Autosurvey”) commenced litigation against its former business partner, Joseph Prevost (“Prevost”), and his co-defendants (collectively the “Defendants”). Autosurvey alleged that Prevost and the other Defendants misappropriated intellectual property originally invented by Prevost, but which Autosurvey claims now belongs to it. This motion arises in response to Autosurvey’s actions in conducting a self-help search of Prevost’s computer server and seizing its contents. The Defendants sought an order staying this action. In the alternative, they asked the Court to remove the firm of Davis Webb as solicitors of record for Autosurvey. They sought these serious remedies in response to Autosurvey’s conduct and in response to the actions of Autosurvey’s solicitors. The court considered: "As serious as it might be to remove Autosurvey’s counsel as solicitors of record in this action as an expression of the Courts distaste and rejection of their conduct and their client’s conduct, in my opinion it provides the Defendants with no real or meaningful remedy in the unusual circumstances of this case. If such a limited sanction were to be imposed, Autosurvey itself would still remain seized throughout the course of the litigation between these parties with knowledge of the Defendants privileged communications. As such, the only remedy, which can properly recompense the Defendants in any meaningful way for Autosurvey’s conduct, is to bring the proceedings to an end." Emms, Re, 2005 CanLII 6376 (ON S.C.) Date: 2005-01-27 Docket: 02-5149. R. MacKinnon J. Electronic documents seized during a fraud investigation were reviewed for privilege. "After hearing submissions and considering all documents and computer media which Mr. Emms wished me to review, I issued a detailed order requiring in part that a written record be created of all documents ruled privileged (whether seized computer media or hard copy) and that it and they be sealed and filed with the court. The Crown and police were further prohibited on a continuing basis from reading or perusing them. All CD documents ruled privileged were ordered deleted from the court laptop after a new CD was made from that laptop of all files on those 6 parsed down CD’s not ruled privileged. Copies of the new CD were ordered to be provided to Mr. Emms, the court and police. The remaining contents of the court laptop were ordered to be fully erased and totally deleted. " Pacific Northwest Herb Corp. v. Thompson, 1999 CanLII 2038 (BC S.C.) Date: 1999-12-06 Docket: C9848. Melvin J. In a suit alleging inappropriate conduct by a former employee, the plaintiff brought a motion to retrieve information from the former employee's home computer. Because the employee had used the computer to draft documents related to a matrimonial dispute as well as communications with his lawyer, he sought advice about how to erase information from the hard disk and then used "F disk" to remove all information, including the operating system. Cost ShiftingNEW Borst v. Zilli, 2009 CanLII 55302 (ON S.C.), 2009-9-23. Master Ronna M. Brott. The parties reached an agreement wherein: the parties would retain an independent computer consultant (“ICC”) who would obtain a copy of the computer data (“the image”); an independent solicitor (“ISS”) would review the documentation for relevancy and privilege; and the ICC would provide the defendants with a copy of the documentation, to be provided to the plaintiffs. The parties disagreed about who should pay for the ICC and the ISS: the defendants assert that the plaintiffs should pay because they are seeking the information, while plaintiff seeks to share the costs. Recognizing the proportionality principle to ensure that the costs of discovery do not unduly interfere with a just, speedy and inexpensive resolution of a dispute, and drawing on analogy to Rule 32, the court ordered the plaintiff to pay for the ICC, and that the costs for the ISS be split between the parties. Vector Transportation Services Inc. v. Traffic Tech Inc., 2008 CanLII 11050 (ON S.C.) Date: 2008-03-17 Docket: 05-CV-300129 PD2 Perell J. Dismissal of the appeal of a Master's order allowing a limited forensic examination of the defendant's computer hard disk at the cost to the plaintiff. Barker v. Barker, 2007 CanLII 13700 (ON S.C.) 2007-4-24 Justice Cullity. Plaintiffs claims relate to the treatment they received between 1965 and 1983 as residents, and patients, at the Oak Ridge maximum security division of the Mental Health Centre at Penetanguishene during the administration of programs allegedly conducted by the defendants under the supervision of the Crown (province of Ontario). Defendants propose to image and code the medical records, some 50,000 to 100,000 double-sided documents, and make the electronic collection available to the plaintiffs. The defendants moved for orders requiring the plaintiffs to pay one-third of the cost of scanning, and coding, the documents - the other two-thirds to be borne equally by the Crown and the defendant physicians. The motions were opposed by the plaintiffs. The court agreed that the benefits to the plaintiffs justified an order for the sharing of the costs of conversion. JDS Uniphase Inc. v. Metconnex Canada Inc., 2006 CanLII 34432 (ON S.C.) Date: 2006-10-16 Docket: 05-CV-31806. Master Beaudoin. In this case the parties attempted to comply with (i.e. the Ontario eDiscovery) guidelines in that they discussed the method of exchanging and producing documents in an electronic format. Plaintiff and Defendant shared the costs, and Defendant applied to have their half recovered. Master Beaudoin declined, stating that costs would be settled at the end. "[14] To require the Plaintiffs to reimburse these costs I would require additional information with respect to the long-term benefits of producing the electronic database in the enhanced format. This is not a case where either of the parties is unable to bear the costs of this litigation which will no doubt be complex and expensive. In order for me to make the interim cost award sought, I would require clearer evidence that the production of the database in the revised format was of benefit to both parties in the litigation or to the court or that the costs of the electronic production resulted in a disproportionate burden for one of the parties." Consorcio Minero Horizonte S.A. et al v. Klohn-Crippen Consultants Limited et al, 2005 BCSC 500 (CanLII) Date: 2005-04-05 Docket: S006413. T.J. Melnick, J. While not dealing with cost-shifting for electronic discovery, this case does deal with an analogous situation. The plaintiff is a Peruvian mining company; the defendant is a British Columbian company that controls its subsidiary in Peru. Defendant complains that plaintiff has been dilatory in producing documents. Plaintiff objects that much of the financial information sought in the demand for further production is only of marginal relevance, but in para 31 the Court agreed that the documents were potentially relevant. "The plaintiffs concede that they have in their possession or control a substantial number of financial documents (approximately 300,000 “backup accounting documents”, some of which were apparently used to generate financial statements which have been disclosed). The plaintiffs submit that the cost of producing this financial information will be close to $16,000. The plaintiffs are prepared to produce all of this information upon payment by the defendants in advance. Alternately, the plaintiffs propose that they will make the documents available for inspection in Peru by the defendants and their experts." (para 13) The court concluded "Certain financial records are to be examined by representatives of the defendants in Peru or provided for inspection in Vancouver upon the defendants providing security of US $16,000." (para 36). Jorgensen v. San Jose Mines et al, 2004 BCSC 1653 (CanLII) Date: 2004-11-26 Docket: L023369;S036753. I.H. Pitfield, J. The defendants sought delivery of the electronic database used by the plaintiffs to compile the list of documents. The court held that the use of a software program to facilitate the production of the list is a choice that it made and it is part of that firm's work product, but ordered the defendant to tender $4,000 to the plaintiff’s firm in order to have a copy of the database in electronic form. The $4,000 covered a share of the cost of preparing the database. (See paras 18-30, which were cited in Barker v. Barker 2007 CanLII 13700 (ON S.C.). Thomson Kernaghan & Co. Ltd., (Bankruptcy of), 2003 CanLII 47453 (ON S.C.) 2003-05-15 Docket: 31-OR-206917T Sidney N. Lederman J. NEW Business Depot Ltd. v. Genesis Media Inc., 2000 CanLII 22370 (ON S.C.), 2000-05-09, J. Macdonald J. Appeal from a Master's decision requiring the plaintiff to pay for the accounting required in its counter-claim against the defendant . "The master held that the appellant had advanced the claim for an accounting on the basis of a very weak suspicion that it had been overcharged. The master accepted that it would cost the respondent a significant amount to search all of the storage boxes for the relevant documents from the years 1992 through 1998." Appeal dismissed. Bank of Montreal v. 3D Properties Inc. et al. (No. 1) (1993), 111 Sask.R. 53 (Q.B.). : May 20, 1993 Docket: Doc. Q.B. 535/90. Grotsky J. All reasonable costs incurred by the plaintiff, including inter alia, searching for, locating, editing, and producing said "documents": computer records, discs, and/or tapes for the applicant shall be at the applicant's cost and expense. Metadata, deleted and hidden informationHummingbird v. Mustafa, 2007 CanLII 39610 (ON S.C.) Date: 2007-09-19 Docket: 06-CV-304092PD1 Master Sproat "While there was no evidence as to the precise nature of metadata, it seems to me that metadata is “data and information in electronic form”. Hummingbird has determined that certain of the documents located on the hard drive and certain of the metadata was relevant. In my view, once Hummingbird has determined that a particular document is relevant, the metadata in relation to such document should be produced. In my view, the metadata is akin to a “time/;date stamp” affixed to a letter or the “fax header” that indicated the time/date of faxing and receipt." (para 9) Veltheer v Prachnau et al, 2007 BCSC 511 (CanLII) Date: 2007-03-15 Docket: M042197. J. Sinclair Prowse, J. Deleted material may still need to be produced if it is relevant. "With respect to the documents that are filed in the electronic devices and/or the computers, the Plaintiff may find the material of the Defendant to be very helpful, as it is explained as to what in fact is in the possession or under the control of a person having such electronic devices or computers. That is, documents are still possessed and in control even though they may have been deleted, or they thought they had been deleted, from the hard drive." (para 10) (Italics P.D.) Ireland v. Low, 2006 BCSC 393 (CanLII) Date: 2006-03-10 Docket: S0014950. B.M. Joyce, J. Nice description of "deleted" information: "[7] I am also satisfied that the mere “deletion” of a computer file by the computer user does not remove the electronic data. It removes the operating system pathway that allows retrieval of the document by the user employing the computer’s operating system. Eventually the data may be “overwritten” as new data is stored in the sectors that stored the original data but until this is done a person with the necessary skill can retrieve the “deleted” data using software programs for that purpose." Prism Hospital Software Inc. v. Hospital Medical Records Institute. 62 B.C.L.R. (2d) 393, [1992] 2 W.W.R. 157, 40 C.P.R. (3d) 97 November 25, 1991 Docket: Vancouver Doc. C872267. Parrett J. During the course of this litigation, and specifically during disclosure, the defendants produced a quantity of magnetic media. This took two forms: firstly, floppy disks, and secondly, magnetic tape backups. Plaintiff examined each disk disclosed by the defendants, and after restoring the tape backups, each hard disk as recorded by those tape backups. During the course of his examination, he located and read a series of files or information which though deleted, as I have described, continued to exist....The files and programs stored on magnetic media are "documents," just as files in programs stored on paper are. The difference between them is the media and the techniques used to access that file or information. ...If the information accessed is fragmentary or incomplete, depending on the purpose for which it is tendered, it may be necessary to provide expert opinion as to what the information means. That particular problem is best addressed in each individual case where the material and the purpose for which it is tendered can be assessed by the trial judge on the facts before him. In Reichmann v. Toronto Life Publications Co. et al. (No. 2), [1986] O.J. 1727 (Ontario High Court), there was a motion by the defendants to compel the plaintiffs to produce a copy of a computer diskette upon which a the document had been produced. The motion was allowed. The computer diskette was included in the definition of ‘document’ in the Rules. The court further indicated that it would be inconsistent with current trends to refuse production and discovery of the diskette. "The plaintiffs have been provided with a copy of the manuscript produced from the disc but the defendants have resisted production of the disc itself. I do not at all understand the technology involved but it appears to be the position of the plaintiffs that information would be made available to them by the possession of the disc which is not obtainable from the product of the disc with which they have been provided. " Nicolardi v. Daley, 2002 WL 35652 (Ont. Master), Heard: January 31, 2002 Judgment: February 15, 2002 Docket: 97-CV-126314CM. Dash Master. A party's obligation to disclose and produce all documents in its possession, control or power, includes an obligation to accurately disclose all such documents in its sworn affidavit of documents, including documents once in a party's possession, but no longer in their possession. As indicated "documents" include documents that exist only in electronic form, and documents no longer in a party's possession would include documents purged from a computer where no paper or electronic copy exists. I am of the opinion that when a failure to deliver all documents is an issue in the action, the vigilance required to accurately convey this information is even more critical. Further, even in the absence of this requirement in the rules, a party should take proper care to ensure that information it conveys as to the existence or state of documents is accurate, particularly when the information it conveys is uniquely within the knowledge of that party. (Italics P.D.) It is certainly foreseeable that an opposing party may rely on information provided as to the existence of documents, or as to the existence or state of a computer in which documents reside electronically, and may incur costs in pursuing production or inspection of those documents. Duplicate DocumentsRobertson v. Edmonton (City) Police Service (#9), 2004 ABQB 243 (CanLII) 2004-03-29 Docket: 010316123 Frans F. Slatter J. "There is little authority on whether drafts are automatically producible in an ordinary civil context when the final document is producible. The production of the final version presumes that the final document is material, relevant and not too remote to the issues. The test must be whether the draft is also relevant and material, which must in turn depend on whether some relevant inference can be drawn from the differences between the draft and the final version. In some cases the draft might be relevant itself, as when it discloses that the party knew something, or when it first knew that fact. Here it is suggested that differences between the various drafts will be relevant." (para 60) Admissibility of Internet InformationNEW Carter v. Connors, 2009 NBQB 317 (CanLII) Date: 2009-12-02 Docket: N/C/66/07. Ferguson J. The defendant-applicant brought a motion to order the plaintiff to produce records of her Facebook usage from the time of her accident in this personal injury case. Plaintiff objects that the information is either irrelevant or an infringement of her right to privacy, or both. The courts reviews the law of relevance in discovery and reasonable expectations of privacy and concludes at para 36 that "(i)t is clear from these judgments that the success of an application to retrieve an individual’s electronic computer data principally depends upon the degree of intrusion into the private lifestyle choices and electronic activity of the Internet user as well as the probative values of the information sought." The court crafts an order in para 46 that arranges for the production of the Facebook information and its protection from further disclosure by the defendants. NEW Kent v. Laverdiere, 2009 CanLII 16741 (ON S.C.) Date: 2009-04-14 Master Haberman. The action arises from a dog attack on the plaintiff. This is a motion by the defendant requesting all MySpace and Facebook pages for the 3 plaintiffs, four weeks before trial and more than 5 years since the incident. Original discoveries took place 4 years ago, and no request was made at that time for photos or for MySpace documents (which by this point was in use by young people). Based on the closeness of the trial, and the fact that the plaintiff does not explain how the Facebook and MySpace photos would be relevant to the matters at issue, the court dismissed the motion. Warman v. Wilkins-Fournier, ON S.C.J. March 23, 2009. Kershman J. Motion requiring defendants to produce information identifying, or which could assist the plaintiffs in identifying, anonymous message board users on a site currently registered in Panama. Plaintiff argues for a liberal interpretation of Rule 76.03 (Simplified Procedure – Affidavit of Documents) and the duty to disclosure in Rule 30.01. Defendant relies on Irwin Toy (2002) to argue that the Plaintiff must present a prima facie case for disclosure. Court notes that in the case of Irwin Toy, the disclosure was being sought from a third party or non-party to the case, where here the information is sought from the defendant. The Defendant also relies on the FCC copyright infringement case BMG v. John Doe where the court sought to balance privacy rights against public interest. The Court observed that the recent case R. v. Wilson established that there was no reasonable expectation of privacy of one’s IP address information (para 40). See Dan Michaluk’s post on his privacy law blog. Leduc v. Roman, 2009 CanLII 6838 (ON S.C.), Date: 2009-2-20 Docket: 06-CV-3054666PD3. D.M. Brown J. In this motor vehicle action the defendant, Janice Roman, appeals from the decision of Master Dash made August 14, 2008, dismissing her motion to compel production from the plaintiff, John Leduc, of all pages on his Facebook webpage (also called a Facebook profile). Although the profile was available publicly, the actual pages were only accessible by "friends". Master Dash adopted the first two steps: he ordered Mr. Leduc to preserve his Facebook postings and to deliver a supplementary affidavit of documents. However, he dismissed the defendant’s motion for production of all site materials as overly broad. While I share the Master’s concern about the breadth of the defendant’s request, I think the court should have permitted the defendant to cross-examine on the supplementary affidavit of documents to learn what relevant content, if any, was posted on Mr. Leduc’s Facebook profile. To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial." (para 35) Goodridge v. King, 2007 CanLII 51161 (ON S.C.) Date: 2007-10-30 Docket: CV-05-042-00TT Platana J. Plaintiff's posting of photos on Facebook used as evidence that her injuries "have not interfered with her normal everyday enjoyment of life." (para 128) ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056 (CanLII) Parallel citations: (2003), 29 C.P.R. (4th) 182; (2003), 239 F.T.R. 203 Date: 2003-09-10 Docket: T-1459-97. Tremblay-Lamer J. "In my view, when considering the contents of a web site, the original is found on the Internet and provides better evidence than a print copy. The Court was able to see the documents as they existed on the Internet, and could witness such features as hyperlinking and interactive streaming that could not have been realistically reproduced on paper." (para 13) "Overall, I am of the view that the use of the Internet at trial was beneficial and on several occasions, provided evidence which could not have otherwise been before the Court. For example, the Internet was used by counsel for WIC to confirm that the print copy of the meta tags (key information on a web site) was in conformity with the information found on ITV Technologies' web site. This would not have been possible without access to the Internet. (para 15) ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056 (CanLII) Parallel citations: (2003), 29 C.P.R. (4th) 182; (2003), 239 F.T.R. 203 Date: 2003-09-10 Docket: T-1459-97. Tremblay-Lamer J. "Given that web sites are continually changing and evolving, a web site which appears on the Internet today would not necessarily look the same as it did for example, in 1997. In order to look into the past, both parties relied on the web site www.archive.org, which contains a digital library of Internet web sites. By using the Way Back Machine, the parties were able to access the web sites as they had existed at the relevant time period. I am satisfied that this web site is reliable, and that the Court could rely on its digital library for an accurate representation of the web sites at the relevant time period." (para 14) Examination of an IT RepresentativeTelemax Communications Inc. v. Canquest Communications (Canada) Inc., 2006 CanLII 7033 (ON S.C.) Date: 2006-03-10 Docket: 02-CV-233323CM2. Master Dash. "[13] Telemax sold pre-paid phone cards. Canquest provided switching services to Telemax to route the pre-paid card calls and provide PINs for card users pursuant to various agreements between Canquest and Telemax. Canquest through its switch was to capture and store telephone usage in its computer database including PINS, originating and destination telephone numbers, number of seconds on each call and other time related data. Canquest generated Call Detail Records (“CDR”) that was used to generate invoices. This commercial dispute centres on the validity of the invoices rendered by Canquest to Telemax for use of its switching services. Telemax claimed it did not pay the invoices because they were excessive and not supported by the data provided. Telemax has contended throughout that it never received complete and accurate billing data from Canquest to support the billings rendered." Corporate representative examined did not have the necessary technical knolwedge. Under Rule 31.03(2)(b), the Court can permit further corporate representatives to be examined in special circumstances. Forensic Collection and PreservationFactor Gas Liquids Inc. v. Jean, 2008 CanLII 15900 (ON S.C.) Date: 2008-04-08 Docket: C-1292-06 P.B. Hambly J. [7] On May 18, 2005 Vosburg had installed on Jean's computer at Factor a program called Spector Pro 5.0. It recorded a photograph of Jean’s desktop every 59 seconds. It kept these images for 90 days. [8] In the Last 90 Days That Jean Worked for Factor he was saving files to the C drive of his computer rather than to a drive dedicated for Factor employees. He was also saving files to a USB Flash Drive which was a small portable computer storage device which could be removed and taken to another computer. There was evidence that he had deleted files saved to his C drive. There was evidence that he used his personal e-mail account with Microsoft to send e-mails from Factor’s computers. Vosburg concluded that Jean, while he was at Factor, stole confidential information of Factor by transferring files from Factor’s computers to his home computer. He also concluded that Jean planned to use this information in setting up a competing business through Bigler and Bigler’s employees and associates. [16] Gowlings, representing Factor, took steps to preserve e-mails that Jean sent from his personal e-mail account. Brian Hughson, a lawyer with Gowlings, sent Microsoft the following letter dated November 17, 2006 to the attention of Jonathan Bradley: (preserving Hotmail account) CIBC World Markets Inc. v. Genuity Capital Markets, 2005 CanLII 3944 (ON S.C.) Date: 2005-02-16 Docket: 05-CL-5690;05-CL-5716. J. M. Farley J. Plaintiff had sought Anton Piller relief. Defendant's counsel had given an undertaking to preserve the information that was interpreted in the context of it being the equivalent of an AP order but without any ability of the plaintiffs or their counsel having any access to review or otherwise see anything which is obtained. A forensic company (Zawaig) was retained to execute the preservation. They were "to have access for imaging and storing in a safe manner the contents of computers, Blackberries and other types of similar electronic devices of every nature and kind as to which the defendants have in their possession, power, ownership, use or control, directly and indirectly. This would include the Casey/Zwaig team having access to such devices wheresoever located, including at any office or home (but not restricted to such locations) whether or not said to be owned or used by others including spouses, children or other relatives as such would be accessed during a normal AP order execution of a home or other location. I would assume that it would not be necessary to image and store the contents of any such device said to be used by others (and not by the defendants) if on an overall review of the contents, it is obvious that the device in fact does not contain any contents of interest in these proceedings. The defendants should also certify that they have not utilized the services of some other person or some other electronic device to send or receive messages and other relevant material; similarly that they have not done anything since the January 4, 2005 hearing to delete anything." In regard to the process, "The defendants are to provide a schedule forthwith (I trust within a day or two) of a listing of all subject electronic devices including make, model, serial number if applicable and location in a form acceptable to the Casey/Zwaig team after consultation." Regarding third party sources, "Counsel will jointly send a letter to all independent (sic) server providers (ISP) over and above those already contacted, which have acknowledged they will preserve any relevant material in their respective servers." Portus Alternative Asset Management Inc. et al, Re, 2005 28 O.S.C.B. 2670, 2005-03-04, Docket: Court File No. 05-CL-5792. C. L. Campbell J. The Ontario Securities Commission applied to have KPMG appointed as a receiver for all assets, undertakings and properties of Portus Asset Management. The court approved the appointment and ordered the respondent to cooperate with the Receiver and permit the Receiver to make, retain and take away copies of and grant to the Receiver access to and use of accounting, computer, software and physical facilities. The court also ordered that Internet Service Providers and other Persons which provide e-mail, world wide web, file transfer protocol, Internet connection or other similar services shall deliver to the Receiver all documents, server files, archive files and any other information in any form in any way recording messages, e-mail correspondence or other information sent or received by such directors, officers, employees or agents in the course of their association with the Debtors. Netsmart Inc. v. Poelzer, 2002 ABQB 800 (CanLII) Parallel citations: (2002), [2003] 1 W.W.R. 698; (2002), 20 C.C.E.L. (3d) 195; (2002), 8 Alta. L.R. (4th) 255 Date: 2002-09-20 Docket: 20311169 Neopost Canada Ltd. v. 566812 Ontario Ltd., 2003 CanLII 34014 (ON S.C.) Date: 2003-09-16 Docket: 03-CV-254839CM1. Motion for plaintiff to examine defendant's documents in place, in a case involving theft of trade secrets from a former employer. Complex request for an Anton Piller order involving a not-yet-named defendant. Solicitors for the as-yet-unnamed defendant did arrange for the forensic investigation firm Kroll Lindquist Avey to seize and photocopy or image the documents in PCAN’s office, including those in the offices of the individual defendants and other sales staff and on their hard drives. They seized over 26 bankers’ boxes of documents, including the contents of a paper recycling bin. One banker’s box of documents clearly belonging to Neopost, including some found in the recycling bin, have been returned to Neopost’s solicitors. Kroll Lindquist Avey are still reviewing documents in an effort to determine those belonging to Neopost. First Choice Capital Fund Ltd. v. First Canadian Capital Corp., 1999 SKQB 235 (CanLII) Date: 1999-12-08 Docket: QB 1757/96 JCS. Baynton J. "The second is an order requiring the defendants to preserve potential evidence. Specifically, the plaintiffs seek an order requiring the defendants to preserve all electronic data in their possession or power that relates to any matters in question in the action, by making two image copies of it, by retaining the image copies intact for use in the action until further order, and by filing with the court on or before January 15, 2000 written confirmation that the image copies have been made and will be retained intact until further order." Geophysical Service Inc. v. Sable Mary Seismic Inc., 2003 NSSC 73 (CanLII) Parallel citations: (2003), 213 N.S.R. (2d) 303 2003-04-01 Privacy IssuesNEW Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (ON S.C.) Date: 2009-10-29 Price J. Plaintiff is suing her insurer for compensation related to injuries resulting from an automobile accident. Defendant seeks an ex parte preservation order and production of plaintiff's Facebook account, although it does not provide evidence that the Facebook profile contains relevant information, nor asked the plaintiff any questions about the Facebook profile during examinations for discovery. Moreover, the court could find no reason to conclude that the plaintiff would delete photographs from her Facebook account. Finally, the court asserted the Facebook users' privacy interests in their profiles and the role of PIPEDA in protecting that interest. The court did give the defendant leave to cross-examine the plaintiff on her affidavit of documents to ensure she has complied with her obligation to list and produce all relevant documents, including those on Facebook, if relevant. NEW Wice v. Dominion of Canada General Insurance Company, 2009 CanLII 36310 (ON S.C.) Date: 2009-07-06 C. Boswell J. Plaintiff suffered traumatic brain injury in a motor vehicle accident and sues his insurer. Defendant seeks preservation and production of information from Facebook. The defendant produced evidence demonstrating that there are relevant photographs of the Plaintiff participating in social activities posted on his Facebook profile. Court ordered plaintiff to provide a further and better Affidavit of Documents, and to preserve any and all documentation on Facebook. Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII) Date: 2008-06-11 State Farm v. Privacy Commissioner and AG of Can., 2008 NBQB 33 (CanLII) Date: 2008-01-28 Docket: F/M/39/07. Judy Clendening J.C.Q.B. "The Applicant seeks a declaratory order that the Privacy Commissioner has no authority to investigate a complaint of an individual against State Farm. This individual, Gerald Gaudet, commenced an action against Jennifer Vetter, who is insured by State Farm. The insurer has been investigating this claim, and it appears that Gerald Gaudet is not happy about surveillance of his activities by State Farm. The Privacy Commissioner has decided to investigate and demands that State Farm send to them the material they have collected on surveillance for a review by the Privacy Commissioner." (para 6) Court decided that Federal Court is more appropriate jurisdiction. Bellaire v. Daya, 2007 CanLII 53236 (ON S.C.) Date: 2007-12-07 Joy J. Class action. Invasive surgery for infertility. New standard of care. Hearing was for certification of a class action. "Counsel for the OPGT has requested that she be provided with a list of the identified Class members so that the OPGT can cross-check it against its register of guardians for mentally incompetent persons. The Hospital does not oppose, provided that the list is provided in a manner that is minimally invasive of Class member’s privacy interests. To that end, the Hospital shall, as soon as reasonably possible, prepare and provide to Ms. Redden, counsel for the OPGT , a list setting out the names, dates of birth and last known addresses of the Class members. The list shall not include any medical information and shall not be titled in a manner that links the list to this action or to any doctor or medical condition. It shall be delivered on a password protected CD or “memory stick”. It shall not be “saved” and no copies, electronic or otherwise, shall otherwise be made of the document. Ms. Redden shall designate a single individual to undertake the data base search under her supervision. The CD or “memory stick” shall be returned to the Hospital within 10 days. The Hospital shall coordinate with Ms. Redden the date on which the list is to be provided. The OPGT shall promptly provide Class counsel with the outcome of its search." [para 73] Somwar v. McDonald's Restaurants of Canada Ltd., 2006 CanLII 202 (ON S.C.) Date: 2006-01-10 Docket: 05-CV-283913-SR. Stinson J. "With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence." (para 29) Shred-Tech Corp. v. Viveen, 2006 CanLII 41004 (ON S.C.) Date: 2006-12-05 Docket: C346-05. D.J. Gordon J. The defendants are former employees and suppliers of the plaintiff. The plaintiff retained an investigative agency to examine the activities of the defendants in establishing a competing business. During discovery, the defendants received the investigative report and became aware that the investigator had obtained the defendants’ Bell Canada telephone records without their consent or court order and that the investigator had made audio and video recordings secretly and without permission. In a counterclaim, the defendants allege invasion of privacy, trespass and breach of confidentiality.
Third Party Information and Norwich ordersNEW York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.) 2009-9-9 G.R. Strathy J. York U. applied for a Norwich order to obtain the identity of the the author(s) of an allegedly defamatory and widely distributed e-mail.York had already successfully applied for the IP address related to the Google email account used in the communication.The court used the factors determined by the Ontario CA review of Norwich orders (GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619) to assess whether the order should be granted. Centura Building Systems Ltd. v. Blackcomb Mountain Development Ltd. , 2007 BCSC 939 (CanLII) Date: 2007-06-29 Docket: L042758 Nathan Smith J. The plaintiff, Centura Buildings Systems Ltd., (“Centura”) applies for the production of documents from Four Seasons Hotels Ltd., (“Four Seasons”) which is not a party to this action. Four Seasons opposes the application, saying that the proposed order would require an expensive and time-consuming review of thousands of documents. In B.C. “Rule 26(11) allows the court to order production of “a document” in the possession or control of a person who is not a party.” Discussion of scope of production required of a non-party, with degree to which the Peruvian Guano test can be applied. “Because Peruvian Guano was decided in 1882, it can be assumed that most of the documents were handwritten. The typewriter was still in the category of new, emerging technology. In setting out a very broad test of relevance, the court could not have anticipated it being applied to the huge volume of documents created, reproduced, transmitted and stored by 21st Century communications technology. Even Dufault v. Stevens, decided in 1978, predates much of the technology now in common use, such as e-mail and the internet.” (para 12). "In the circumstances of this case, the plaintiff’s argument that it must have full disclosure of all documents from both Blackcomb and Four Seasons to ensure that no documents are missing is a far too tenuous and speculative basis for requiring a non-party to engage in the kind of onerous search that the plaintiff is seeking." (para 26) King v. Merrill Lynch Canada Inc., 2005 CanLII 43679 (ON S.C.) 2005-11-23 Docket: 02-CV-01979. R. Smith J. "Another key piece of evidence contradicting the evidence of King, Crook and Firman was the electronic record of telephone calls, which were recorded contemporaneously by an electronic chip in the receiver of each telephone set, at Merrill Lynch’s Ottawa office. The data recorded shows the date and time of the call, the number called and the originating number and the length of the call. The recording equipment and software was owned by Avotus Corporation (“Avotus”), which is a company in the business of recording telephone data and generating reports for clients. Avotus provides such services for a number of other large clients, including General Electric, Daimler Chrysler, Hewlett Packard and the Bank of America. (para 76). At the end of each day, all telephone data was automatically sent by modem to a server located in Mississauga, where the data was stored. The telephone data was recorded in the usual and ordinary course of business of Avotus and Merrill Lynch and I have previously ruled in a motion that the telephone records, extracted from the recorded data, were business records within the meaning of s. 35 of the Evidence Act, R.S.O. 1990, c. E.23. (para 77)." Loblaw Companies Ltd. v. Aliant Telecom Inc., 2003 NBQB 215 (CanLII) Date: 2003-06-02 Docket: S/C/522/03. H. H. McLellan J. Someone obtained confidential payroll information for a number of senior employees of the applicant's distribution division. That person apparently sent an email with that information to thirty-four employees of the applicant. The applicant seeks the identity of the intended defendant through discovery of Yahoo! and Aliant Telecom in accordance with rule 32.12 (of the New Brunswick Court of Queen's Bench). The application was granted and the Respondents ordered to identify, preserve and safeguard from destruction all relevant information in their possession to identify the holders of the e-mail accounts and the IP addresses. BMG Canada Inc. v. John Doe (F.C.), [2004] 3 F.C. 241, 2004 FC 488 (CanLII) Parallel citations: (2004), 239 D.L.R. (4th) 726; (2004), 32 C.P.R. (4th) 64; (2004), 250 F.T.R. 267 2004-03-31 Docket: T-292-04. von Finckenstein J. Practice -- Discovery -- Production of Documents -- Federal Court Rules, 1998, rr. 233, 238 application for order requiring production by non-party to action -- Identity of customers of internet service providers (ISPs). “However while the law protects an individual's right to privacy, privacy cannot be used to protect a person from the application of either civil or criminal liability. Accordingly, there is no limitation in PIPEDA restricting the ability of the Court to order production of documents related to their identity.” (para 39) BMG Canada Inc. v. Doe, 2005 FCA 193 (CanLII) 2005-05-19 Docket: A-203-04. Canada’s music industry seeks the names of people downloading music from the internet. They allege that the only means of ascertaining the identity is through the Internet Service Providers (ISPs), who provide the internet service to the infringers. The ISPs, citing privacy concerns, have refused to provide the names of the Internet users, who are downloading files of the recording industry, without a court order. “The information sought by the plaintiffs may be buried in logs and tapes but is not presently in a readable format. Since the documents in a readable format do not currently exist and would have to be created, Rule 233 has no application. The Rule contemplates the production of documents which are "in the possession of a person". It cannot be said that documents which do not exist are in the possession of a person.” “Thus, in my view, in cases where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action. However, caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way.” “In any event, if a disclosure order is granted, specific directions should be given as to the type of information disclosed and the manner in which it can be used. In addition, it must be said that where there exists evidence of copyright infringement, privacy concerns may be met if the court orders that the user only be identified by initials, or makes a confidentiality order.” This is an appeal of the dismissal of the motion. Appeal was dismissed. Anton Piller OrdersNEW Dish Network LLC v. Ramkissoon, 2010 ONSC 773 (CanLII) Date: 2010-02-23 Docket: 09-8091-00CL Cumming J. Findings of contempt resulting from the defendant's hiding of disk drives, deletion of information and general lack of cooperation in the execution of two Anton Piller Orders. Design Group Staffing Inc. v. Fierlbeck, 2008 ABQB 35 (CanLII) Date: 2008-01-15 Docket: 0603 02889 • 0601 05676 Frans F. Slatter JCQBA. Application to set aside an Anton Piller order. Defendant was working as an IT consultant developing applications for the Alberta Treasury Branches and was dismissed after a dispute. Before leaving, he sent himself 300 emails embedded in 5 separate emails from his ATB account to his home account on the Telus network. He then deleted that information from his laptop and emptied the “trash”. Concerned about possible “identity theft” if the emails contained personal information about ATB customers, ATB alerted the plaintiff who in turn applied for the AP order and a Norwich order to freeze the Telus account. The court rejected the argument by the defendant that it was not a true AP order, not being intended for preservation but rather for the protection of identity theft information. However, subsequent analysis of the emails seized revealed that there was no customer information in the emails sent, and ATB could have discovered the contents from the copies still in their servers. Although the plaintiff applied for the AP in good faith, they should have determined whether ATB could learn what the emails contained, noting the 10 day period between when the emails were sent and when plaintiff applied for the order. Court determined there was material non-disclosure and set aside the two orders. (Questions from P.D.: How long is reasonable to recover the email, review the content, determine through sampling that there was sensitive info, determine the appropriate legal course of action and put together the application?) Brunswick News Inc. v. Langdon, 2007 NBQB 423 (CanLII) Date: 2007-10-03 Docket: S/C/549/07 Peter S. Glennie J. Reasons for granting an application for an injunction against the use of proprietary and confidential information and an Anton Piller order. Nice review of the law up to October 2007 on Anton Piller orders. Bell Expressvu Limited Partnership v. Rodgers (Tomico Industries), 2007 CanLII 50595 (ON S.C.) 2007-11-21 Docket: 06-CL-6574 Pepall J. Unsuccessful motion to set aside an Anton Piller order. Defendant raised ten bases, each of which were rejected. Note that defendant had initially refused entry, but agreed later in the day after being served with a contempt motion. Two of the computers that had been subject to the search were found not to contain any hard drives. Solara Technologies Inc. v. Beard, 2007 BCCA 402 (CanLII) 2007-07-31 Docket: CA033051 Reasons written by Madam Justice Levine. Appeal from an order restraining the appellant plaintiff from using an email retrieved from the contents of the respondent's computer hard drive. The contents had originally been seized pursuant to an Anton Piller order in May 2004, which the defendant moved to have set aside in April 2005. The Court acknowledged there were irregularities in granting and conducting the Anton Piller, but refused to grant the order because of the 12 month lapse of time while restraining the plaintiff from using the email. The email is extremely relevant and a discoverable document. The Appeal Court gave leave to hear the appeal of the order and set aside the paragraph in the order restraining the use of the email. K.P.I.N. v. K.N.N., 2005 BCSC 163 (CanLII). 2005-01-05 Docket Vancouver E040663. Groberman J. Anton Piller order in a matrimonial case. The court was satisfied that "the defendant has shown a settled intention not to comply with court orders for production of information and documents, that there is a very strong prima facie case that the defendant has secreted assets and attempted to move them out of the jurisdiction". Order was necessary to preserve evidence. In the "Delivery of Listed Items" section, the order required the defendant to give "effective access to the computers, with all necessary passwords, to enable them to be searched." The Plaintiff was to take.. "all reasonable steps ... to ensure that no damage is done to any computer or data". The Supervising Solicitor might remove any and all computers so that a true copy could be made of the contents. Schedule I attached as an appendix lists the following that could be removed: any and all computers, "zip-drives, computer backup and storage devices and information", "any and all email or electronic or other correspondence relating to financial matters", and any "on-line statements and receipts, whether in print format or electronic format showing on-line financial records or transactions of any kind". Catalyst Partners Inc. v. Meridian Packaging Ltd., 2007 ABCA 201 (CanLII) Date: Date: 2007-06-21 Docket: 0703-0027-AC. Côté J.A. Successful appeal of an Anton Piller order. Reviews the four essential conditions for granting an Anton Piller order as described in Celanese. (para 7) The original request failed to demonstrate deliberate dishonest conduct. (para 35). Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (CanLII) Date: 2006-07-27 Docket: 30652. Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ. Headnotes from Supreme Court of Canada: "Civil procedure — Anton Piller order — Requirements for order — Guidelines for preparation and execution of order." (head notes) Defines the fundamental purpose of an Anton Piller order as "the preservation of relevant evidence". (para 31) Brew Alliance Inc. v. Aztec Trading Ltd., 2006 ABQB 362 (CanLII) Date: 2006-05-31 Docket: 0403 17495;0403 17494. Chief Justice A.H. Wachowich. Where documents obtained under an Anton Piller order can be used in other actions. John Stagliano Inc. v. Elmaleh, 2006 FC 585 (CanLII) Date: 2006-05-12 Docket: T-1779-05. J. Gauthier J. "The plaintiffs now ask the Court to review the matter and to confirm that the Anton Piller Order was properly granted and that it was executed in accordance with its terms against the defendants Alain Elmaleh (Elmaleh), 144942 Canada Inc. (cob Kaytel Video Distribution) (Kaytel) and Leisure Time Canada Inc. (Leisure Time). They also seek permission to use the evidence produced by or obtained from those defendants in these proceedings as evidence in two pending actions in the United States District Court for the Central District of California, provided such use is permitted by the law of that forum." Plaintiffs sought relief from the implied undertaking rule. The court dismissed the motion with costs, and ordered that the material seized under the Anton Piller order be returned, with the exception of evidence filed with the court that would be sealed, subject to a Confidentiality Order. CIBC World Markets v. Genuity Capital Markets, 2006 CanLII 11908 (ON S.C.) Date: 2006-04-06 Docket: 05-CL-5716. J.M. Farley J. "If there are aspects of that index (which would be a public document in a report – upon an equivalent AP [Anton Pillar] (SIC) order execution which this process is to mirror) which contain truly irrelevant material to the dispute – and which the defendants for personal reasons would prefer not to be on the public record, then a motion could be brought to have the full index sealed and an expurgated one provided for the public record which contains information which is clearly not irrelevant. In that regard reference may be had to Knight v. KPMG LLP, (1999), 20 C.B.R. (4th) 258. If the parties were able to agree as to irrelevant aspects, this may well be of significance to the hearing judge. " Canadian Derivatives Clearing Corp. v. EFA Software Services Ltd., 2001 ABQB 425 (CanLII) 2001-05-07 Docket: 0101-01734. T.F. McMahon J. De novo review of an ex parte application for an Anton Piller order. Plaintiff alleges that defendant had given information had received in confidence for the development of a software application to a company with a major interest in it, which was also a competitor of the plaintiff. Defendant had not disclosed the relationship with the parent company during the negotiations for the contract. The plaintiff made and was granted an ex parte application for an Anton Piller order for the preservation of relevant information in the hands of the defendant. Order involved mirror images of the hard drives on the Defendants computers. Defendant vigorously protested the order and this decision is a de novo review. During review it became clear that the information on the computers had since been changed to comply with other elements of the order and that the Defendant had neither tape backups or an archive copy that would reflect the state of the software under dispute at the beginning of the action. “The result is that there has been an erasure of evidence that was previously stored on EFA’s computers. It is appropriate to apply R.468(a) (Alberta Court of Queen’s Bench) to preserve the mirror image copy in the bailiff’s hands, as it may now be the only existing evidence of the state of affairs at the time the action was commenced. Again, I emphasize that I do not find EFA acted in bad faith or deliberately set out to destroy evidence. Electronic data poses a particular challenge. Merely printing out material from the mirror image copy will be unsatisfactory. Data deleted from a disk drive may be recoverable. Information about the creation, revision and deletion of data may surface. One of CDCC’s goals is to trace the travels of its Confidential Information through EFA’s system. CDCC suspects that it may be able to find an inappropriate informational link between the CDCC and NexClear projects. That endeavour would require certain computer expertise, and may be the subject of a further hearing before this Court. For that purpose, preservation of the mirror image copy is essential. Given what is now known about the release of at least some of CDCC’s Confidential Information to NexClear and its consultants, this cannot be described as a fishing expedition… There is no evidence or indication that EFA would destroy such evidence, either in bad faith or as a routine matter. There is, accordingly, no need or justification for preserving these documents in independent hands.” Original order is attached. Yaghi v. WMS Gaming Inc., 2003 ABQB 680 (CanLII) Parallel citations: (2003), [2004] 2 W.W.R. 657; (2003), 18 Alta. L.R. (4th) 280 Harris Scientific Products Ltd. v. Araujo, 2005 ABQB 603 (CanLII) 2005-08-08 Docket: 0003 04105. J.B. Veit J. "The breaches of the execution of the Anton Piller order were numerous and serious. Indeed, the execution of the order could serve as the poster case of what not to do on the execution of such orders." (para 7.) "Awards for wrongful Anton Piller orders have historically been low. In order to prevent abuse of this intrusive mechanism, courts must award a level of damages that exceeds the mere cost of doing business and that reflects the affront which the abuse of these orders causes to those whose privacy has been invaded." (para 8) In addition to more substantial awards, Alberta courts might consider revising the rules of practice that govern access to Anton Piller orders. The English Rules, which always require an undertaking of confidentiality, which typically require the use of an independent supervising solicitor and which sometimes require the creation of a fund out of which damages can be paid, might serve as a useful guide in this area." (para 9). Netsmart Inc. v. Poelzer, 2002 ABQB 800 (CanLII) Parallel citations: (2002), [2003] 1 W.W.R. 698; (2002), 20 C.C.E.L. (3d) 195; (2002), 8 Alta. L.R. (4th) 255 2002-09-20 Docket: 20311169. R. Paul Belzil J. This is an application to set aside or vary an Anton Piller Order earlier granted by the same judge, and a cross-application to release items seized pursuant to the Order. Documents, computers, computer components, as well as electronic media, CDs and floppy disks were seized from residences as well as business locations. Counsel for the Plaintiff met with counsel for the Defendants to review all of the items seized, resulting in a Consent Order providing for the return of the computers after copies were made of the hard disks. These copies then became the only source of evidence of what was on the hard drive at the time of the seizure...."In the Province of Alberta there is no clearly defined uniform procedure in place with respect to the execution of Anton Piller Orders, and in particular, there is no Rule of Court or practice note in place."... Ridgewood Electric Ltd. (1990) v. Robbie, 2005 CanLII 3946 (ON S.C.) Date: 2005-02-18 Docket: 1685/04. Corbett J. Observation about the frequency of Anton Piller orders in employment cases. "With the advent of computer technology, in many cases Anton Piller orders will be effective only if they can be enforced with speed and with an element of surprise. It is not acceptable that the search be delayed for days, or even hours, once the defendant has notice of the order. The information or property to be preserved may be copied, transferred across the world, and erased from a computer with a few apt keystrokes. Once the order is served, the premises must be secured immediately, and the search must proceed." (para 23b) A discussion of inherent problems with the Anton Piller process. ...."people do believe, rightly, that uninvited private persons are not entitled to barge into a private residence without permission. People do believe, rightly, that this sanctity of the hearth does give way to a properly authorized police search. People do believe, rightly, that misconduct in a police search can be addressed in the courts. I suggest, with respect, that the use of Anton Piller orders in private residences is not understood by the public, and creates an atmosphere that is not consistent with a free, open and democratic society. " (para 59) Celanese Canada Inc. v. Murray Demolition Corp., 2004 CanLII 10143 (ON S.C.D.C.) Parallel citations: (2004), 69 O.R. (3d) 632; (2004), 237 D.L.R. (4th) 516; (2004), 183 O.A.C. 296 Date: 2004-02-06 Docket: 03-CV-250875CM2. MacFarland, Ellen Macdonald, and C. Campbell JJ. This is an appeal from an interlocutory order of Nordheimer J. dismissing a motion to remove Cassels, Brock & Blackwell LLP as solicitors for the Plaintiff and other related relief. "It is important we think to note that counsel often come to the Court seeking Anton Piller orders on an extremely urgent basis. The orders themselves are by their nature, lengthy and contain many terms. The Court very much relies on counsel, in making such orders, to not only bring forward all of the relevant evidence but also to draft the proposed orders in a way that will be least intrusive and which will preserve the purpose of the order which is the preservation of the evidence." (para 4, emphasis in original text) Celanese Canada Inc. v. Murray Demolition Corp., 2003 CanLII 6649 (ON S.C.) Parallel citations: (2003), 69 O.R. (3d) 618 Grenzservice Speditions Ges.m.b.h. v. Jans, 1995 CanLII 2507 (BC S.C.) Parallel citations: (1995), 129 D.L.R. (4th) 733; (1995), [1996] 4 W.W.R. 362; (1995), 64 C.P.R. (3d) 129; (1995), 15 B.C.L.R. (3d) 370 Date: 1995-11-29 Docket: C944646. "Perhaps the time has come to consider developing a standard form Anton Pillar order." (para 112) Temporary Internet FilesSociety of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 (CanLII) Date: 2004-06-30 Docket: 29286 Binnie J for the majority opinion. "The practice of creating “caches” of data speeds up the transmission and lowers the cost. The subsequent end user may have no idea that it is not getting the information directly from the original Web site. Cache copies are not retained for long periods of time since, if the original files change, users will get out-of-date information." (para 23) Ministry of Water, Land & Air Protection, Re, 2002 CanLII 42480 (BC I.P.C.) Date: 2002-09-12 Docket: 02-46 David Loukidelis, Information and Privacy Commissioner. "This is called “caching”; each computer stores and preserves images locally that may be wanted again. Using the readily accessible local copy prevents reloading the image from a remote (and slow) source. Unix and Windows operating systems routinely cache images, as do individual web browsers. In particular, Netscape Navigator and Microsoft Internet Explorer make use of caches in RAM memory and on hard disk. These images are stored with particular names and time/date stamps, and they can be retrieved, copied and printed. The user will not necessarily be aware that these images are being stored, but it happens nonetheless." (para 12) As noted in the SCC decision, though, cache copies are not retained unless the users explicitly store them so they are available "off-line".
Peg Duncan April 16, 2010
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