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

Legal Technology


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.

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