A $40 million class action was commenced against Ottawa’s Montfort Hospital, as reported by Chris Hofley in the Ottawa Sun, on May 10, 2013.
The case is based upon the health care information of 25,000 patients that was collected in October 2012 and lost on a non-password protected USB key in November 2012. The lost information included patient names, services received at the hospital and a health care provider code for each service. While the USB was recovered shortly thereafter and there is no evidence the information was accessed by a third party, the class is alleging breach of contract, negligence, breach of privacy and violations of the hospital bylaws and the Personal Health Information Protection Act.
The class alleges that the hospital was negligent in that it failed to password protect the information and then failed to disclose the loss of the information in timely manner. According to the Sun, “the suit seeks damages to compensate patients for the costs related to preventing identity theft, mental distress and “inconvenience, frustration and anxiety” caused by the incident.
We seem to hear more and more frequently about privacy breaches in Canada. Increased volumes of data certainly increase the risk of inadvertent disclosure. However, there are ways to protect against these risks, namely, good information governance. Good information governance policies and protocols increase data protection, decrease unauthorized access, and generally are successful at keeping organizations out of the media and courts for privacy breaches of the sort described above.
In recent years, the litigation landscape has shifted slowly towards a more cost-conscious approach to document production. Long gone are the days of packing up everything (including the kitchen sink) and handing it over to opposing counsel. There is now a greater emphasis being placed on proportionality, achieved in part through meet and confer sessions and formalizing a mutually agreed-upon discovery plan to help reduce the overall cost of the litigation.
In addition, proper management of the initial stages of discovery can significantly reduce the overall costs of discovery. Day Three covered the initial steps of preservation, identification and collection, project management, proportionality and ethics.
Some Day Three items of note and best practices:
• Get the preservation stage right: it is the one phase of discovery where do-overs may not be possible;
• Don’t collect too broadly; target the collection as much as possible to reduce the costs of the processing and lawyer review phases;
• Keep proportionality alive and well in discovery by engaging in meaningful discussions with opposing counsel through the “Meet and Confer” process:
o discuss (and hopefully narrow) the scope of the litigation, by determining what types of records are truly needed for trial;
o discuss the format for production so there are no surprises;
o formalize the discovery plan in writing.
Course attendees left Day Three armed with an abundance of information on managing the costs of litigation and with hands-on experience of a mock “Meet and Confer” session.
As it turns out, quite a lot.
Historically, the practice of maintaining the business records in an organization from their creation to timely disposal was known as “records management” or “document management”. This definition worked well when dealing primarily with paper documents.
We now live in an electronic world. The practice of creating, organizing, storing, and disposing of information is much more complex. Managing data is a critical business function. Accordingly, new terminology is in order. Enter “Information Governance” or “IG”.
According to Leigh Isaacs, in Information Governance: Not Just Hype, Law Technology News (1-25-2013), “information governance goes well beyond traditional records management…at the highest level, information governance is a holistic, all-encompassing discipline, that, when effectively implemented and managed, offers multiple and varied benefits to an organization”. She admits that IG is not easy, emphasizing that “the right mix of people, process and technology is critical to success”. She also points out that converting to IG requires time and culture change.
We agree: a new definition is in order, and secondly, information governance is decidedly not hype. Further, there is no doubt that the benefits that flow from good information governance include both the mitigation of numerous legal risks and compelling business efficiencies.
The term “information governance” better reflects the legal and technological realities of dealing with information in the electronic age. In law and in business, terminology is important. So is information governance.
Escalating volumes of electronic information increase the risk of inadvertent disclosure of privileged and personal information. Thematically, Day Two covered the risks of this type of disclosure, and the best practices to implement to avoid these risks. Good information management is essential for protecting of privileged and personal information.
The highlight of the day was the keynote speaker, Dr. Anne Cavoukian, Information and Privacy Commissioner of Ontario. It was a privilege have Dr. Cavoukian attend this inaugural course to speak about the future of privacy in Canada and around the world. She is a passionate speaker who is a fierce advocate for the protection of individual privacy rights.
During her address, Dr. Cavoukian outlined the benefits of Privacy By Design. Her view is that to be effective privacy considerations need to be the default setting, embedded in systems from the beginning, rather than an afterthought. Other foundational principles of this approach to privacy include: emphasizing prevention over remedial actions, full lifecycle protection, transparency and a user-centric approach.
Dr. Cavoukain also emphasized the need to change the current privacy paradigm from a Zero Sum model (one example of which is the assumption that an increase in police protection will cause a corresponding decline in personal privacy) to a Positive Sum model. The Positive Sum Privacy Model creates win-win scenarios instead of either/or scenarios which involve unnecessary trade-offs.
Course attendees left Day Two with an enlightened view of individual privacy rights. They went home armed with questions to ask the next time they are asked to provide personal information to an organization, and definitely ready to encrypt their personal data.
Some themes and highlights from Day One of this inaugural course:
- Culture Shifts Required: with the costs of litigation (and volumes of data) continuing to escalate, a notable culture shift is required in the legal profession if litigation is going to survive. Master Calum MacLeod and Justice David Brown emphasized the need for counsel and clients to approach litigation in a cost-effective manner. Other sessions endorsed cultural shifts in the approach to managing records, and to understanding and applying technology.
- If You Cannot Beat Them, Join Them: how to navigate the world of personal user accounts, BYOD (Bring Your Own Device), social media and The Cloud. The key, according to Dan Michaluk (and we agree), is the implementation of clear policy language.
- The Cure for What Ails Discovery and Numerous Other Business Issues: good information management policies and protocols can keep the costs of e-discovery down. Susan Nickle and Sheila Taylor confirmed that there are compelling business and legal cases for all organizations to implement good information management principles – now.
- Lawyers and Technology (Not Oil and Water Anymore): even legal professionals must develop at least a basic understanding of information technology, network systems, and basic IT terminology. Thanks to Jim Swanson and Kevin Lo for helping us navigate these (often muddy and acronym-filled) waters.
Look out for the Highlights from Day Two of the course next week.
Canadian courts continue to grapple with scope of production issues in various contexts. In the B.C. case of XY, LLC v. Canadian Topsires Selection Inc.,  B.C.J. No. 657, (“XY, LLC”) the plaintiffs brought an application for further production of records. Of note here is the fact that the defendants had failed to disclose certain records and had deliberately misled the plaintiffs and the court. As a result, an Anton Piller order had been previously executed, which secured a significant number of paper and electronic records.
Under the B.C. rule amendments, documentary production is two-tiered, in part to ensure the discovery process remains proportionate. Parties are required to produce records that are material to the case (for any party), and those upon which the producing party intends to rely at trial. Further production is facilitated through demands for particular classes of documents, which must be identified by the requesting party with relative precision. Strictly construed then, discovery is limited to a finite set of records that are identified with some precision (para. 25).
With this statutory framework in place, the B.C. Supreme Court considered whether broad document production (to the standard in the Peruvian Guano case) should continue to be available in certain cases. This required an examination of a court’s jurisdiction to invoke its inherent jurisdiction with respect to discovery issues.
The court noted that in some cases, such as those involving fraud or other wrongdoing, parties are unable to identify with specificity the full range of records they seek. Further, it may not be possible to lead evidence that these “unknown” categories of records exist.
Calling the court’s jurisdiction to order broader discovery (beyond classes of records identified with reasonable specificity) “auxiliary” in nature, the B.C. court held that “expanded document production may, in appropriate cases, serve to better achieve the diverse purposes” of a “just, speedy and inexpensive determination of every proceeding on its merits” (para. 56). However, it confirmed that extenuating circumstances would be required to order discovery outside of statutory parameters, and made clear that such cases would be limited (para. 57).
Ultimately, the B.C. court declined to give the plaintiffs the relief sought in this case, due in large part to the Anton Piller order that it held would have captured and protected the majority of the required records. Further, proportionality principles were not applied in this case as the case was deemed to be unconstrained by such concerns.
We do note with interest that another Canadian court has confirmed that it would prefer that counsel collaborate and ideally resolve discovery scope issues prior to turning to the courts for resolution (refer back to our blog on Kaymar v. Champlain).
What do we take from this case?
- A limited scope of discovery governed by statutory rules of procedure will continue to be the norm;
- In extenuating circumstances, courts have the inherent jurisdiction to order “broader discovery”; this jurisdiction will be utilized sparingly;
- Proportionality continues to be an overriding objective in Canadian courts; and,
- Courts want to remain a last resort for discovery disputes.
Despite discovery plans entering our legal vernacular in January of 2010 with the Ontario rule amendments, they are still not utilized consistently.
In Kaymar v. Champlain CCAC, 2013 ONSC 1754, (which involved a dispute about various privilege claims), Master McLeod took the opportunity to comment on the discovery plan produced in the case. His commentary provides guidance to discovery plans generally. First, he provided his view that these plans should be flexible. “In a perfect world, the discovery plan would be a living breathing process, modified, adapted and updated as necessary.” (para. 37).
He further expressed his preference that discovery plans should contain a “sophisticated, non adversarial process” for dispute resolution. Although acknowledging the central role of courts in adjudicating disputes and supervising the discovery phase of cases, he stated:
A well-crafted plan should minimize the need for court intervention and utilize adversarial adjudication as a last resort. A contested motion with court inspection of disputed documents is inherently a cumbersome and expensive way to resolve discovery disputes. (para. 38)
What can we take away from this case?
1. Courts want counsel to deal with discovery issues to the greatest extent possible (the mandated discovery plan was our first clue);
2. Ensure your discovery plan is flexible. Continue to revisit it as required;
3. Proactively include a suitable dispute resolution process in your plan that minimizes cost and burden for the parties and the court (similar to a prenuptual agreement, develop the remedies prior to the disputes occurring);
4. Don’t run to the court for all of your disputes. Exhaust other available remedies first. Use the court as a last resort.
Susans Wortzman and Nickle attended the 7th Annual Sedona Conference Institute “Living on eDiscovery’s Cutting Edge” at the end of March in San Diego, California.
As predicted, the Sedona Conference® attracted an excellent faculty that led the attendees (hundreds of Americans, four Canadians and one Irish counsel) through a varied and ambitious agenda, using the “dialogue not debate” model. The agenda covered everything from the expected (the Cloud, proportionality, and a case law update) to the less expected (ethics, and expert roundtables on particular areas of law – regulatory matters, employment actions).
A great deal of “dialogue” involved the subject of technology assisted review (“TAR”), a topic which surfaced frequently throughout the 1.5 day conference. TAR is being used frequently in the U.S., with courts endorsing (and sometimes mandating) its use to reduce enormous volumes of electronic information and reduce the costs of e-discovery.
There are compelling research studies that support TAR, and one pending which will be of particular interest as it will outline which TAR software outperforms its competitors.
This conference lived up to its hype as one of the landmark conferences in the U.S. The only disappointment? Notwithstanding sessions on cross-border discovery issues, data protection, privacy and other “international” topics, there was no mention whatsoever of Canada.
Perhaps we’ll work on raising the Canadian profile for next year’s conference.
For a third consecutive year, Wortzman Nickle has been asked by Lexpert to offer its 2013 E-Discovery Conference. The various multi-disciplinary sessions throughout the day will focus on leading-edge strategies for both E-Discovery and Information Governance, as well as the most current technologies that support them. Litigation readiness/best practices plans and legal project management, always popular topics, will also be examined.
Accredited by the Law Society for 5.75 substantive hours of CLE, this conference will be offered in Toronto on May 27th, 2013 and in Calgary on May 30th, 2013. In Toronto, Shaun Saldanha, Senior eDiscovery Manager/Legal from the TD Bank will provide “The Client’s Perspective” as a lunch time address.
Wortzman Nickle is pleased to offer its clients, colleagues and blog readers a registration discount for this conference. Please email Christine Quinlan at firstname.lastname@example.org for details.
Canadian courts continue to grapple with the implications of different forms of communication, technology and the right to privacy, in this electronic age.
Last week, the Supreme Court of Canada released a decision with respect to the procurement of text messages by authorities in the criminal context. In R. v. Telus Communications Co., 2013 SCC16, the Court was asked to decide whether a general search warrant was sufficient to secure the production of text messages, both existing and “prospective”, stored by Telus for two subscribers for a two week period of time. Telus’ policy is to retain its subscribers’ text messages for a period of 30 days.
Noting that texting is “in essence, an electronic conversation” the Court held that the transmission method was the only difference between texting and a voice communication. As such, text messages are to be treated as private conversations, requiring more than a general search warrant.
Practically speaking, given the privacy protections afforded by the Criminal Code, this means that authorities will require wiretap (interception) authority, which is more difficult to obtain than a general warrant, to secure text messages.
The court was not unanimous in its decision, illustrating the complex nature of these issues. We will continue to watch with interest as the Canadian courts wrestle with these issues and as technology continues to evolve.
© 2009 Wortzman Nickle Professional Corporation. All Rights Reserved.