Canada: Records Management @ Gowlings - January 23, 2012 - Volume 3, Number 1

Legal Technology

CASE LAW

Warman v. Wilkins-Fournier  2011 ONSC 3023.

Motion brought by the plaintiff requesting an Order compelling the defendants to produce relevant documents in their possession and control relating to the identities of three John Doe defendants.  The defendants owned a operated a message board which allowed users to post comments on a variety of topics.  The three John Doe defendants were alleged to have posted defamatory comments.  The documents demanded were the IP addresses used to create the accounts in question, the e-mail addresses and personal subscriber information and the IP addresses used by the John Doe defendants to make the alleged defamatory comments.  There was no issue as to the relevance of the documents or the fact that the data came within the meaning of the term "document". 

In deciding whether to order disclosure the Court considered four principles: (1) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (2) whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (3) whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and (4) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.  The Court held that the first three factors must be weighed and balanced in the context of the fourth factor.

The Court found that the plaintiff had taken all reasonable steps to identify the parties by examining their posts and cross-referencing their pseudonyms.  There was no reasonable expectation of privacy since the use of pseudonym evidenced an intention to remain anonymous not an expectation.  Further, the terms of use for the website made it explicit that members could be prosecuted for defamatory comments.  The Court went on to find that the plaintiff had established a prima facie case that the postings were defamatory.  Finally, the Court found that due consideration had been paid to the John Doe defendants' right to privacy and freedom of expression.  Accordingly, the Court ordered the disclosure of all the relevant documents in the defendants' control.

Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Incorporated, 2011 WL 3738979 (S.D.N.Y.)

Issue: Treatment of emails and attachments as separate items for discovery/production purposes

The reported case involved a Defendants' motion to compel production of documents.  The documents at issue were email attachments which were not produced by the Plaintiffs (Respondents on the motion) at the time that the original emails were produced pursuant to discovery obligations.  The Respondents did not claim privilege to the attachments.  When the Defendants inquired as to the reason for the non-production of attachments, no reasons for the non-production were initially provided.  The Plaintiffs ultimately produced only two of the attachments at issue and stated its position that it had conducted a reasonably diligent search for responsive documents and produced the non-privileged responsive documents located in the search.

The Defendants (Applicants on the motion) argued that that the failure to produce email attachments to responsive emails is inconsistent with its discovery obligations on the basis that: i) the requests called for non-privileged responsive documents as kept in the ordinary course of business; ii) the non-production violates the rule which requires a party to produce documents as they are kept in the ordinary course of business; and iii) the Sedona Conference's Glossary defines document in a way that includes attachments to a letter (logical single communication of information, but consisting of more than a single page standalone record).  The Defendants alleged that the non-production was evidence of a widespread problem affecting its production.

The Plaintiffs maintained that it had conducted a reasonably diligent search for responsive documents and produced the non-privileged, responsive documents located in that search.  The Plaintiffs further noted that its document production, including emails and attachments, had exceeded 1.5 million pages of documents.  The Plaintiffs' main argument was the attachments not produced fell outside the relevant time period which production was limited to.  Further, the Defendants could only point to nine emails for which attachments were not produced, only three of which were from the relevant time period.  The Defendants responded by identifying a total of one hundred and twenty-six emails with attachments missing.

The Special Master noted the jurisdiction on a motion to compel production of documents and noted the moving party must demonstrate that the discovery sought is more than merely a fishing expedition, which this motion was ultimately not held to be.

Addressing the question of whether emails and attachments should be considered separately for the purpose of assessing whether each item can be withheld on the grounds of privilege, the Special Master observed that courts generally treat attachments as separate from email correspondence and should be logged that way, such as in the case of privilege claims, absent an agreement between the parties or an order of the court providing otherwise.  The Special Master agreed there was a good basis to treat emails and attachments separately based on the relevancy requirement for discovery.  However, the Special Master also noted the completeness standard of discovery implies that an entire document may be required to be introduced into evidence where it "ought in fairness" to be considered contemporaneously.   Overall, the Special Master noted that prevailing practice is for parties to produce any non-privileged attachment to an email if the emails is determined to be relevant, and to produce the email if any of the attachments are relevant.  Although this practice is not an ironclad legal standard, it was held to be a helpful guide for related discovery disputes. 

Best practice in these cases was held to be for the parties to discuss the production and logging of emails and attachments as separate items in advance of production and reach an agreement for responsiveness and privilege purposes.  However, these practices were not followed in the case at issue.

The Special Master found that it would be patently unfair to place a burden on the Defendants to identify all emails missing attachments and to identify those emails to the Plaintiff for the purpose of further productions.  However, the production nevertheless appeared to be inefficient and was not justified by the burden and expense to the Plaintiffs.  The Special Master ordered the Plaintiffs to produce the already identified missing non-privileged attachments identified or provide a detailed explanation of how the attachments were separated from the parent emails or why they cannot be located/produced without undue burden or expense.  The Special Master also ordered that sufficient details and reasonable explanations must be given for any attachments which were intentionally withheld on the basis that they were not relevant.  Any further requests for attachments must be based first, on establishing relevance and second, by considering the ability of the Plaintiffs to produce the attachment without suffering undue hardship. 

The Special Master further ordered the parties to meet and confer within ten days of the Order to address the status of productions and implored the parties to make an agreement regarding the issues to be followed in the future, in accordance with best practices as outlined.

The recommendations of the Special Master were also adopted by the District Court (2011 WL 3734236 (S.D.N.Y.)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
17 Dec 2016, Other, Ontario, Canada

Podcast summary

In the inaugural episode of Diversonomics, co-hosts Roberto Aburto and Sarah Willis introduce listeners to the podcast and discuss their experiences with diversity and inclusion in the legal industry. They also outline some of the obstacles the profession faces with respect to adopting new strategies and overhauling old practices.

22 Dec 2016, Other, Toronto, Canada

Podcast summary

For episode two of Diversonomics, co-hosts Roberto Aberto and Sarah Willis interview Mark Greenburgh, a partner in Gowling WLG's London office. They discuss the exciting new diversity and inclusion opportunities that have arisen since the combination of Gowlings and Wragge Lawrence Graham, as well at Gowling WLG UK's LGBT OpenHouse initiative.

28 Dec 2016, Webinar, Toronto, Canada

Podcast summary

In episode three of Diversonomics, co-hosts Roberto Aburto and Sarah Willis interview Lorna Gavin, Gowling WLG U.K.’s head of diversity, inclusion and corporate responsibility. In their discussion, they explore the challenges and opportunities of implementing diversity and inclusion strategies across a global firm, while also detailing Gowling WLG U.K.’s various diversity networks.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.