LITIGATING IN THE CLOUD

1. LITIGATING IN THE CLOUD THE SEDONA CONFERENCE GUIDELINES AND PRACTICAL PRECEDENTS FOR E-DISCOVERY LEXPERT CLOUD COMPUTING CONFERENCE 2012CLOUD COMPUTING: A PRACTICAL APPROACH TANISHA G. TULLOCH416-777-5359TTULLOCH@TORKINMANES.COM DECEMBER 3, 2012ST. ANDREW’S CLUB AND CONFERENCE CENTRE

2. ‘CLOUD COMPUTING’ IN THE LITIGATION CONTEXT • Discovery, preservation and production of documents are familiar aspects of litigation practice. • By some estimates, more than 90% of all information is created in electronic format. • A party’s duty to produce and preserve electronic documents (e-documents) relevant to a litigation arises in the same way as for paper documents. • The trend towards document storage in the Cloud poses new problems and complications for litigants, their counsel and the judiciary.

3. ELECTRONICALLY STORED INFORMATION (ESI) IS DISCOVERABLE • In Canada, the rules of documentary discovery are codified by each province’s rules of court. • Rule 30.01 of the Ontario Rules of Civil Procedure define ‘document’ for the purposes of discovery as “a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account and data information in electronic form.” • Canadian courts have repeatedly held that electronically stored information is producible and compellable in discovery (See Cholakis v. Cholakis (2000), 44 C.P.C. (4th) 162; Reichmann v. Toronto Life Publishing Co, (1988), 66 O.R. (2d) 65; Northwest Mettech Corp. v. Metcon Service Ltd. 1996 CanLII 1056).

4. Authenticity and Integrity Metadata Data Ownership and Control Data Intrusion CONCERNS ARISING FROM CLOUD COMPUTING

5. 1. AUTHENTICITY AND INTEGRITY OF ESI Ontario Evidence Act • Section 34.1(4) Authenticity: • The person seeking to introduce an electronic record has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. • Section 34.1(6) Best Evidence Rule: • Where the Best Evidence Rule is applicable in respect of an electronic record, it is satisfied on proof of the integrity of the electronic record • Section 34.1(7) Presumption of Integrity: • The integrity of the electronic records system by or in which an electronic record is recorded or stored is proved for the purposes of the Best Evidence Rule where: • Computer system operating properly; • Electronic record stored by adverse party; or • Recorded in usual and ordinary course of business.

6. DETERMINING THE AUTHENTICITY AND INTEGRITY OF CLOUD ESI • Litigants adducing Cloud ESI must demonstrate: • The information is relevant, authentic and stems from a reliable system; • The information’s probative value outweighs prejudice; • The information is not precluded as hearsay; and • The information conforms with the best evidence rule. • Authenticity raises special concerns as pertains to the chain of custody from author(s) to Cloud Provider and the integrity of the Cloud.

7. 2. METADATA • The Cloud model has the potential to create a huge collection of new data, and to expose it to the infomediary/Cloud Provider. • When the infomediary has the ability to see what is happening with every click, this creates a rich stream of data. • Although this data stream may not be relevant to the original Cloud operation, there is a risk that it will be used either by the organization or the cloud infomediary for purposes beyond those for which consent was originally given, or may be discoverable. “Digital cameras typically record the time and date when the photograph was taken. Some cameras capture the camera’s GPS co-ordinates as well. These data are known as metadata. These data are relevant to a matter in issue in this lawsuit because they may provide information from which the camera user’s tolerance for physical activity from day to day or over several other days may be inferred.” -Justice Rogers, Abougoush v. Sauve [2011] B.C.J. No. 1243

8. 3. DATA OWNERSHIP AND CONTROL • The creation of new data streams may raise concerns about ownership of data. • Who has power, possession and control of Cloud ESI? • The remove that is created between data and holder by the Cloud infrastructure increases the ambiguity concerning lawful access to stored data for both the Cloud Provider and the original owner of the data. • Determining what happens to the data held by the Cloud provider at the end of the contract.

9. 4. DATA INTRUSION • Individuals give up a level of control when they interact with the Cloud infrastructure. • Cloud service providers or Cloud-based application may be able to access, mine, or otherwise commoditize the data they hold; • Government and/or private exercise of power that results in management or shutting down of particular sites or discourses; and • Private actors intruding upon databases. • In every case, not only is the individual’s data in the Cloud infrastructure at risk, but the individual may never be aware of the intrusion. • New Tort: Intrusion Upon Seclusion • Jones v. Tsige [2012] O.J. No. 148. • Common law tort for the invasion of privacy. “The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable.”

10. The Sedona Principles Preservation Production Proportionality THE SEDONA PRINCIPLES:DISCOVERY OBLIGATIONS IN THE CLOUD

11. THESEDONA CANADA PRINCIPLES ADDRESSING ELECTRONIC DISCOVERY • Differences between electronically stored information (ESI) and paper documents make e-document discovery, production and preservation a very different process as with paper documents. • The rules and case law to date provide little clear guidance to parties and their counsel on how to fulfill electronic discovery, production and preservation requirements. • The Sedona Principles intend to provide a set of e-discovery standards and best-practice recommendations to parties, counsel and the judiciary.

12. 1. PRESERVATION REQUIREMENTS When does the preservation requirement arise? • In common law jurisdictions, the preservation obligation arises when a proceeding is filed. • It can also arise when it is reasonable to expect that evidence may be relevant to future litigation. • The obligation to preserve extends to the metadata associated with electronic records. • Given the dynamic nature of Cloud-stored ESI, delay may increase the danger of claims that relevant evidence was destroyed. • Upon determining that litigation has triggered a preservation obligation, the party should communicate to affected persons the need for preserving relevant information in both paper and electronic form: • Employees reasonably likely to maintain documents potentially relevant to the litigation • Persons responsible for maintaining and operating computer systems or files.

13. 1. PRESERVATION REQUIREMENTS What is the scope of preservation for Cloud information? • The general obligation to preserve evidence extends to ESI, but must be balanced against a party’s right to continue to manage its electronic information in an economically reasonable manner, including routinely overwriting ESI in appropriate cases. • It is unreasonable to expect organizations to take every conceivable step to preserve all ESI that may be potentially relevant. • A reasonable inquiry based on good faith to identify and preserve active and archival data should be sufficient. • A party’s preservation obligation does not require freezing of all ESI, but rather, the appropriate subset of ESI that is relevant to the issues in the action. • Generally, parties are not required to preserve short-term disaster recovery backup media created in the ordinary course of business. • A party is not required, absent agreement or a court order based on demonstrated needs and relevance, to search for or collect deleted or residual ESI.

14. 1. PRESERVATION REQUIREMENTS Preservation Orders • In some cases, it may be appropriate to seek the intervention of the court to ensure that ESI is preserved. • Anton Piller orders, which allow one party to copy or take custody of evidence in the possession of another party, have been widely used in most Canadian provinces when one party is concerned that the opposing party will destroy relevant ESI. • Parties may want to enter into a preservation order on consent. • Avoids the necessity for an Anton Piller order. • In CIBC World Markets Inc. v. Genuity Capital Markets, 2006 SCC 36, the plaintiff brought a motion for the preservation of electronic evidence stored in the defendant’s computer system. The defendants voluntarily undertook to preserve the electronic evidence.

15. 1. PRESERVATION REQUIREMENTS Shared Data • A party’s networks or intranet may contain shared areas (such as public folders, discussion databases and shared network folders) that are not regarded as belonging to any specific employee. • Some of this shared data is potentially relevant to the litigation and should be preserved.

16. 2. PRODUCTION REQUIREMENTS Reasonably Accessible • The primary sources of ESI in discovery should be those that are reasonably accessible. • Certain forms of ESI cannot be reasonably produced. • Old backup tapes, data for which applications no longer exist, databases. • Courts have taken the concept of “marginal utility” into consideration when giving reasons for denying further productions (See Gould Estate v. Edmonds Landscape and Construction Services Ltd. 2005 BCSC 1813). • In refusing a request for further production, the producing party must provide evidence that the cost, burden and disruption of retrieving and processing the ESI from sources other than those accessed in the normal course of business are not justified.

17. 2. PRODUCTION REQUIREMENTS Methodology of Production • Parties should agree on a a methodology of production that: • Preserves metadata and allows it to be produced when relevant; • Communicates accurately the content; • Protects the integrity of the information; • Allows for the creation of a version that can be redacted; • Assigns a unique production identification number to each data item; and • Can be readily imported into any industry-standard litigation review application.

18. 2. PRODUCTION REQUIREMENTS Format for Production • Production of electronic documents and data should be made only in electronic format, unless the recipient is somehow disadvantaged and cannot effectively make use of a computer, or the volume of documents to produced is minimal and metadata is known to be irrelevant. • “There is no good reason to require the defendant to produce paper copies of the documents if the copies on the CDs are legible, complete and printable. I have inspected the documents on CD. There may be some illegible copies but that same problem can occur with photocopies. If any of the copies on the CD are not readable or are badly copied, a better copy on paper or on CD may be requested and shall be provided. Health Canada need not produce all of its documents both on paper and on CD.” Logan v. Harper, 2003 CanLII 15592

19. 2. PRODUCTION REQUIREMENTS Process of Production • A party may satisfy production obligations using electronic tools and processes: • Large electronic data processing systems contain vast amounts of information, much of which is likely to be irrelevant. • Parties may agree on targeted selection criteria to extract high-value discovery data from large collections. • Techniques to Reduce Volume • Filtering • Eliminating Duplicates • Sampling of Computer Data

20. 3. PROPORTIONALITY AND COST CONTROL The Proportionality Rule • The rule of proportionality is a reaction to delays and costs impeding access to justice. • In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account: • The nature and scope of the litigation, including the importance and complexity of the issues, interests and amounts and stake; • The relevance of the available ESI; • Its importance to the court’s adjudication in a given case; and • The costs, burden and delay that may be imposed on the parties to deal with ESI. • Courts must balance the costs of discovery with the objective of securing a just, speedy and inexpensive resolution of a dispute on the merits. • Courts have not ordered the production of documents where the parties have demonstrated that the costs of producing the documents outweighs the likely probative value of the document.

21. 3. PROPORTIONALITY AND COST CONTROL • Early experiences in Canada with e-discovery have been marked by very expensive and time-consuming burdens in preserving and producing ESI in litigation. • E-discovery may involve significant internal client costs as well as counsel fees and disbursements for out-sources services: • Direct Costs – data preservation and retrieval by internal or third-party computer technicians; lawyer review. • Indirect Costs – interruption of routine business processes while employees search for relevant information; risk to organization of disclosure of confidential information and privileged legal communications; risk of failing to preserve relevant ESI that could lead to adverse judgments and sanctions.

22. 3. PROPORTIONALITY AND COST CONTROL • The reasonable costs of preserving, collecting and reviewing ESI will generally be borne by the party producing it. • In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order. • Cost-shifting for e-discovery may be justified after consideration of the following factors: • The specificity of the discovery request; • The quantity of information available from other and more easily accessed sources; • The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; • The likelihood of finding relevant information that cannot be obtained from other, more easily accessed sources; • Predictions as to the importance and usefulness of the further information; • The importance of the issues at stake in the litigation; and • The parties’ resources.

23. Identification of Data Preservation of Data Collection of Data Data Processing Review Production Containing Costs PRACTICAL PRECEDENTS FOR E-DISCOVERY

24. 1. IDENTIFICATION • Begin immediately upon the reasonable anticipation of litigation. • Sources of potential information must be identified early. • Make an early assessment of the issues which will be in dispute. • Determine relevant time periods. • Develop a list of likely or potential custodians of documentation (including Cloud Providers).

25. 2. PRESERVATION • Send a preservation letter to the client to inform of the duty to preserve. • Determine whether any extraordinary preservation measures may be required. • A preservation letter should also be sent to adverse parties putting them on notice of their duty to preserve electronic information and to suspend any ordinary course document destruction policies.

26. 3. COLLECTION • What is the manner in which documentation will be collected from clients? • Particular protocols must be followed in collecting electronic information from clients’ computers/servers/electronic devices. • It is vital to reducing the overall cost of e-discovery that the collection stage proceed in an orderly and strategic fashion. • Be careful not to inadvertently delete or alter data.

27. 4. PROCESSING • The lawyer must consider whether the processing of harvested documents should be done in-house or by a third party service provider. • Processing will involve data entry, or the generation of the relevant fields in connection with the productions. • In conventional discovery terms, the processing of documents would equate to the organization of documents into chronological order, tabbing those documents and generating draft Schedules to the Affidavit. • In the electronic context, this is more involved as documents must be ‘coded’, scanned and run through software filters.

28. 5. REVIEW • Once documents have been processed, the lawyer will review the database for privileged and irrelevant documents. • The lawyer should consider identifying documents based on which disputed issue they relate to or marking them for importance. • Reviewing documents will dramatically reduce the size and difficulty of the discovery.

29. 6. PRODUCTION • Meet and confer with opposing counsel re: • Scope of production; • Format of production; • Use of a common third party service provider; • Privilege issues; and • Costs. • If counsel can agree, formulate a Discovery Plan in accordance with Rule 29.1.03 of the Ontario Rules of Civil Procedure. • If no agreement, consider obtaining a court order under Rule 29.2.02 of the Ontario Rules of Civil Procedure.

30. 7. CONTAINING COSTS • At the pleadings stage, focus on what information is needed to resolve the dispute. • Dialogue with opposing counsel from the beginning. • Narrow the scope of collection – limiting the search to key sources and timeframes. • Use the Rules - courts have demonstrated a willingness to restrict burdensome discovery in the name of proportionality unless it is essential to determine the outcome. • Adopt “best practices” around lawyer review. • Use automated tools where appropriate for the job. • Know when to call for help from e-discovery consultants. • Improve document retention/destruction policies.

31. Questions? Thank you! TANISHA G. TULLOCH416-777-5359TTULLOCH@TORKINMANES.COM TORKIN MANES – BARRISTERS & SOLICITORS151 YONGE STREET, SUITE 1500TORONTO, ON M5C 2W7 TORKINMANES.COM