IADC international law committee survey of electronic discovery and data privacy law.

AuthorSullivan, James M.
PositionInternational Association of Defense Counsel

THE INTRODUCTION of computers and email into the workplace and everyday life has dramatically increased the information available to employers, regulators and litigants. Often this information is confidential or of a personal nature. This puts into conflict the obligation to disclose information and the obligation to keep private information confidential.

It is interesting to see how different jurisdictions have chosen to resolve this conflict. The European Union has produced a Data Protection Directive (1) that has been implemented, in varying degrees, in its member states. The EU Directive broadly defines "personal data" to mean "any information relating to an identified or identifiable person". Each member state has considered how best to integrate and implement that directive in their nation. The survey of French data privacy laws, in particular, provides an example of the pitfalls that United States corporations may face in complying with United States law in the face of the EU Directive.

Common law counties such as Canada and New Zealand have also had to deal with the conflict between broad obligations of disclosure and personal and private confidentiality concerns. In Canada, there are ongoing changes to disclosure rules in many of the provinces the goal of which is limiting the traditionally broad disclosure obligations. Further, statutes have been enacted such as the Personal Information Protection and Electronic Documents Act, (2) to provide guidelines for the production of confidential information.

Similarly, New Zealand has enacted the Privacy Act 1993 to establish the parameters for the collection, handling and use of personal information. In both Canada and New Zealand, there is the development of the common law concept of a tort of invasion of privacy.

It is fascinating to compare how the various jurisdictions have handled this complex and sensitive issue. I thank each of the contributors for their thoughtful and useful essays.

Canada

Canada is a federal country and as a result has a patchwork of privacy and data protection laws governing the collection, use, and disclosure of personal information. However, most legislation defers to the court process. Recent changes to rules of civil procedure which limit the scope of discovery, including e- discovery show a trend away from the broad disclosure law obligations for disclosure to a proportional principle of discovery. (3) The current privacy laws in Canada generally exempt disclosure in a legal proceeding, including electronic documents, from statutory restrictions. (4)

Under the Personal Information Protection and Electronic Documents Act, information may be collected and used without consent in investigating a breach of an agreement or a contravention of law. (5) Section 7(3)(c) allows information to be disclosed without consent if the disclosure is required to comply with rules of court relating to the production of records or a court order. (6) Under Section 8(8), if the organization has the personal information that is being requested, it must retain the information for as long as necessary to allow the individual to exhaust any recourse that they may have to obtain the information. (7) The Personal Information Protection Acts includes a broad exemption for litigation discovery. Section 3(4) expressly states that it "does not limit the information available by law to a party to a proceeding."

The courts have upheld Sections 7(3)(c) and 8(8) of PIPEDA as to third-- party internet service providers in BMG v. Doe, stating that "... ISPs are not entitled to 'voluntarily' disclose personal information such as the identities requested except with the customer's consent or pursuant to a court order." (9) Practically speaking, a third-party organization who is requested to hand over personal information would probably request a court order before doing so.

PIPEDA's approach to litigation differs slightly from similar legislation in British Columbia, Alberta, and Quebec. Section 7(3)(c) in particular leaves open the question whether, in oral examinations for discovery, certain personal information must be disclosed. For this reason, PIPEDA has been criticized as being too narrow and impeding litigation and may be amended similar to the wording of the British Columbia and Alberta laws. (10)

In addition to legislation, courts and working groups have issued guidelines to assist parties when dealing with e-discovery issues. "The Sedona Canada Principles Addressing Electronic Discovery" and the Supreme Court of British Columbia "Practice Direction re: Electronic Evidence" provide guidelines dealing with e-discovery. These tools are helpful in determining how data protection and privacy laws affect the discovery process.

In 2006, the Supreme Court of British Columbia published a practice direction addressing procedures when dealing with large volumes of electronic documents. The procedures in the practice direction should be applied when: (a) a substantial portion of the potentially discoverable documents consist of electronic material; (b) the total number of potentially discoverable documents exceeds 1,000 documents; or (c) there are more than three parties to the proceeding. (11) If the parties agree, the plaintiff or petitioner must inform the court of that fact and the terms of the agreement. (12) Provision is also made for parties to apply to the court for an order that the proceeding be conducted in accordance with the provisions of the Practice Direction. (13) The impracticality of broad disclosure of electronic documentation, as currently required under the Peruvian Guano rule, (14) was a motivating factor for the reform of the rule requiring any document relating to any matter in question in the action. (15)

The new Supreme Court Rules incorporate the Sedona Canada Principles, twelve principles addressing e-discovery issues particular to Canadian law. (16) In particular, the new rules adopt the principle of proportionality espoused by the second Sedona Canada Principle.

While the new rules will not include an exclusive rule regarding e-discovery, (17) they will affect discovery of electronic documents by addressing the substantive aspects of information and limiting the scope of discoverable information in general.

Common Law

The common law relating to privacy in e-discovery continues to develop. Melnitzer notes that courts dealing with privacy issues generally apply common law principles to e-discovery issues (18) Privacy protections are built into discovery with the implied undertaking of confidentiality prohibiting parties from using or disclosing information obtained during discovery for purposes other than the litigation. (19)

The courts of British Columbia and Alberta have adopted the proportionality principle in several judgments dealing with privacy in e-discovery, while courts in Ontario follow the principle of broad disclosure. Most cases in this regard deal with a request for direct access to hard drives and other electronic resources for the purpose of discovery. In British Columbia, a string of cases dating back to 1996 denied access to the other party's hard drive for the purpose of discovery, citing a lack of proportionality. (20) The Alberta Court of Appeal recently followed the British Columbia line of cases, denying access to a hard drive for the purpose of discovery. (21) In Ontario, requests for access to the other party's hard drive for the purpose of discovery have been granted several times. (22)

Invasion of Privacy

Generally, there is no universally recognized common law tort of "invasion of privacy" in Canada. However, there is some movement in Ontario jurisprudence toward recognizing such a legal right under common law. Several Ontario lower court decisions have suggested that individuals can be compensated for violation of privacy, while some have taken the position that such a tort does in fact exist under common law. In Somwar v. McDonald's Restaurants of Canada Ltd., Stinson J. remarked that "[t]he traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual's privacy interests. Protection of those privacy interests by providing a common law remedy for their violation [of tort of invasion of privacy] would be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence." (23)

New Zealand

Privacy law in New Zealand (other than the emerging tort of invasion of privacy) is governed by the Privacy Act 1993. The Privacy Act identifies a number of Information Privacy Principles that establish norms of conduct in relation to the collection, handling and use of personal information. By contrast, disclosure of official information is governed by the Official Information Act 1982 (for central government agencies) and the Local Government Official Information and Meetings Act 1987 (for local government).

The Privacy Act applies to personal information, that is, information about an "identifiable individual". An identifiable individual must be a living natural person. The Privacy Act does not apply to information about a deceased person or corporate persons. The New Zealand Court of Appeal decision in Harder v. Proceedings Commissioner (24) discussed the concept of personal information under the Privacy Act. Although not making any definitive finding on this point, the Court of Appeal commented that the concept of personal information needs to be balanced with concepts of human rights and social interests in the free flow of information. These concepts are relevant to the scope of the definition of personal information. The Harder case indicates that the concept of personal information under the Privacy Act is not unqualified.

The Privacy Act applies to "agencies" including all governmental agencies covered by official information legislation, private sector organizations and, in some...

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