Canada: Records Management @ Gowlings, February 16, 2012 - Volume 3, Number 2

Legal Technology


Animal Welfare International Inc. v. W3 International Media Ltd.  2011 BCSC 299.

Application by the plaintiff to settle the terms and conditions that should attach to the production of documents pursuant to an Order of the Court and to compel the defendant to produce certain documents.  The parties had carried on business under a profit sharing agreement until the agreement was terminated by the plaintiff.  By previous Order of the Court the defendant was to deliver to the plaintiff two customer databases for two separate websites.  The defendant argued that there were privacy concerns relating to production of the databases since the databases contained confidential client information such as credit card numbers, addresses, etc., and as such information contained in the databases should be redacted.

The Court held that the privacy concerns were satisfied by ordering the principals of the plaintiff to sign confidentiality agreements and as such ordered the defendant to turn over the databases.  Further, the Court ordered that the defendant was to produce to the plaintiff any data relating to a report prepared that disclosed sales, profits and costs for a material period of the agreement.  The Court ruled and affirmed that electronic data is a document for purposes of production.  Accordingly, any of the data underlying the report that was stored electronically was to be produced along with any supporting paper documents.

Naaco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, 2011 WL 5986649 (W.D. Tenn. Nov. 16, 2011).

Motion by the plaintiff to prevent further spoliation by the defendant.  In the main action, the plaintiff claimed damages for economic and competitive injury in relation to an alleged unauthorized and improper access to the plaintiff's secure dealer website.  The plaintiff manufactured and sold lift trucks and aftermarket parts.  The defendant was a dealer of the plaintiff's product.  Through the plaintiff's secure website, authorized dealers could access proprietary information, including information for servicing lift trucks, such as maintenance manuals, diagnostics, and pricing information.  By contract, dealers were required to keep confidential the contents of the website.  The defendant was terminated as a dealer, and sold its computers to another dealer.  One of the defendant's employees went to work for the other dealer and the plaintiff issued the employee new access information for the website.  The plaintiff alleged that, despite this, the defendant continued to access its website.  The defendant admitted unauthorized access but denied claims that it obtained trade secrets or infringed plaintiff's copyright by such access.  The defendant's counsel instructed the defendant's President to take various steps to preserving electronic data in light of ongoing litigation.  These instructions were forwarded to several senior employees within the company.

Three to four months later, a similar notice was sent to all of the defendant's employees.

Forensic examinations of the defendant's computers were conducted to identify which computers had accessed the secure website.  Hard drives of identified computers were preserved.  However, as a witness testifying on behalf of the company, the defendant's President had testified that the defendant did nothing at several key times to preserve evidence of access to the website.  In particular, it took no steps towards preservation when the defendant's access information was initially cancelled upon termination of the dealer agreement, when it was served with the plaintiff's complaint, nor when it received a "document hold" letter from the plaintiff.  The plaintiff argued that any evidence lost was at the very core of its claim, and that having been denied the opportunity to fully support its claim, it had been prejudiced by the failure to preserve evidence. In response, the defendant insisted that spoliation was not proven and that the plaintiff's own server logs were the best evidence of access to the website.

The court found that the defendant had failed to meet its obligation to provide a proper and prepared witness on behalf of the corporation. The defendant had a duty to produce a knowledgeable person as to each topic to the deposition and to adequately prepare the deponent.  The defendant's President could not identify who had learned of the access information, nor could he indicate what portions of the website had been accessed.  He should have spoken with each of the employees who admittedly accessed the website and examined each of the computers identified as having been used to access the website.  Re-examination was ordered with costs to the defendant.

With respect to spoliation, the defendant's duty to preserve arose upon the anticipation of litigation triggered only when it received the plaintiff's complaint.  The fact that the defendant knew of its employees' access prior to that time was not reason enough for the defendant to anticipate litigation.  In this regard, the Court noted, the plaintiff had not sent any pre-litigation or cease-and-desist letters prior to launching its complaint.  The defendant's preservation and collection efforts were insufficient in the circumstances in that the defendant failed to issue a written company-wide litigation hold in a timely fashion, and failed to take additional steps to prevent emails from being deleted, to prevent data from being overwritten, or to identify and preserve backup tapes.  In terms of collection, three months had elapsed from the time of the complaint before the defendant began searching for evidence of access.  Collection efforts were improperly left to employees to complete on their own with no managerial oversight, follow-up, or documentation of collection procedures.  Proper technicians were not retained to assist with these efforts.

The defendant's conduct with respect to preservation and collection of evidence constituted negligence at a minimum.  In determining whether sanctions were appropriate, the Court concerned itself less with whether relevant documents were in fact lost given that the plaintiff was only seeking costs associated with the forensic examinations.  Instead, the Court focused on the defendant's conduct in the circumstances. The lack of evidence as to spoliation was primarily the product of the defendant's failure to take steps toward preservation of electronic data, as was the need for forensic examinations.  Costs of the forensic examinations were awarded to the plaintiff.

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

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

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions