1. Sedona Canada Principles ofE-Discovery and Privacy Protection Municipal Information Access & Privacy Forum Developing a Culture of Access & Privacy in Ontario’s Municipalities October 18, 2011 Alex Cameron Fasken Martineau LLP Dan Michaluk Hicks Morley

3. Sedona Canada

4. Pre-litigation

6. Privacy and e-discovery Longstanding tension between privacy rights and the need for full disclosure in litigation Scope of implied consent? Privacy issues arising with increasing frequency in e-discovery context Proliferation of electronic information E-discovery requires the gathering and processing of irrelevant records Blurring between business and personal purposes Non-party, internet and social media issues

7. Privacy and e-discovery FIPPA (s. 64) & MFIPPA (s. 51) These laws expressly state that they do not limit the information otherwise available by law to a party in litigation Does that mean that privacy restrictions are irrelevant? Pre-litigation? Relevance/redaction? What is “personal information”?

8. Sedona Canada The Sedona Canada Principles Addressing Electronic Discovery Ontario Rules of Civil Procedure The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery (Public Comment) The Sedona Canada Commentary on Practical Approaches for Cost Containment Other commentaries to come: Privacy

9. Sedona Canada Principles 2. In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account … (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information. Non-monetary costs and other factors may include possible invasion of individual privacy as well as the risks to legal confidences and privileges.

11. Datatreasury Corporation v. Royal Bank of Canada, 2008 FC 955

12. Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 2192

17. Over-collection will be “necessary” to conduct e-discovery

18. But this is an outsourcing/data security issue – apply due diligence

19. Are retainers through external counsel exposing your institution to risk?11

20. Pre-litigation Regulation of surveillance Necessary for its purpose? Limit collection (especially of third parties) Common law tort? Watch for Jones v. Tsige (ONCA)

21. Pre-litigation Social media issues What is in the user’s control vs. non-party social media service? Public vs. private pages

23. What’s really necessary for preparation?

24. Should identifiers should be redacted?

26. A subpoena duces tecum is not the same as a legal requirement to produce

27. A power to inquire is not the same as a power to compel – e.g., CAS powers

28. Sensitive discreet PI in otherwise producible records – e.g., DOB, SIN, credit card #s

30. Sedona Canada Principles in E-Discovery Municipal Information Access & Privacy Forum Developing a Culture of Access & Privacy in Ontario’s Municipalities October 18, 2011 Alex Cameron Fasken Martineau LLP Dan Michaluk Hicks Morley