Keep or Weep Litigation Holds – Policies and Practices

1. Keep or WeepLitigation Holds – Policies and Practices James Swanson jts@bdplaw.com (403)260-5712

2. Today’s Topics Obligations to preserve records Background Statutory and regulatory requirements Privacy law Government investigations Civil Litigation Preservation Litigation Holds

3. Background – the Obligation Statutory obligations to preserve records: Plethora of legislation and regulations Employment Standards Corporate record keeping Tax records Audits, investigations, etc. Failure to preserve may attract criminal liability, fines, penalties, etc.

4. Background – the Obligation Statutory obligations to destroy records: Privacy laws – PIPA, PIPEDA, etc. Obligation to destroy when no longer needed for reasonable business / legal purposes Destruction of personal information is an offense when it occurs after an individual has requested access to their information

5. Background – Civil Litigation Litigation Stages: Pleadings Discovery and Production of Records Interlocutory Applications / Notices of Motion Trial Appeal

6. Pleadings Statement of Claim, Originating Notice, Petition, etc. Statement of Defence, Demand of Notice, Praecipe to Note in Default Third Party Notices, Demand for Particulars, etc. Interlocutory matters Case management, Interim Orders Trial / Appeal (if any) Background – Civil Litigation

7. Discovery Oral examinations, under oath, Court Reporters, transcripts Discovery of Records (or Documents) - Production Background – Civil Litigation

8. Production Providing the opposite party with access to records that are potentially relevant and material (Alberta) (relevance, semblance of relevance, etc. in other jurisdictions) For simplicity – we’ll call it “relevance” Disclosure Background – Civil Litigation

9. Production of Records Definition of Record very broad in the legal system May differ from what RM considers a “record” Records and documents are legally the same thing, and would include information recorded in any fashion, data, visible or audible matter, etc. If it’s relevant and perceivable by humans, it’s a record Background – Civil Litigation

10. Records Alberta Rules of Court "record" includes the physical representation or record of any information, data or other thing that is or is capable of being represented or reproduced visually or by sound, or both.

11. Alberta Evidence Act "record" means a record of information in any form and includes notes, images, audiovisual recordings, x-rays, books, documents, maps, drawings, photographs, letters, vouchers and papers and any other information that is written, photographed, recorded or stored in any manner, but does not include software or any mechanism that produces records. Records

12. The Courts have ordered production of entire disks or hard drives on basis they are a document The Courts have refused production of disks or hard drives on basis they are akin to a filing cabinet, or are something else besides a single document or record As drives get larger, more of the latter approach Records

13. Canadian General Standards Board Electronic records as admissible evidence CAN/CGSB 72.34.2005 Public release – January 2006 Records

14. Canadian General Standards Board Part 1: Electronic records as documentary evidence Part 2: Electronic Signatures and evidentiary requirements Part 3: Codes representing retention and disposal requirements Part 4: Long term preservation of digital information Records

15. What are we talking about? Evidence Act and Rules of Court very broad – if you can see it or hear it, then it's likely a record Is there a difference between a document and a record? Not in the Evidence Act or the Rules of Court Records managers may differ Records – Bottom Line

16. Electronically Stored Information (ESI) will be considered records in the legal system if they meet the relevant and material test In discovery, potentially relevant and material records must be provided to the opposing party in the process of determining relevancy Records

17. Your Grand Dad's Records Paper was simpler All content readily visible Number of formats limited WYSIWYG Generally categorized and indexed for filing or not kept Once destroyed, it was generally gone Driving to the landfill was rare Not dynamic – relatively fixed content

18. Copying generally led to degradation Copying was expensive Paper did not make copies of itself without your knowledge, nor did it run around and hide from you File cabinets did not talk to each other Distribution required moving atoms (at least until the fax) Paper was not distributed and did not reside in the Cloud Your Grand Dad's Records

19. Content not always readily visible – metadata Display on screen one way of looking at the record Printed copy another way of looking at the record Not Your Grand Dad's Records

20. Number of formats large and can be changed WYSIWYG – maybe Very dynamic – often cannot be printed or rendered static and make sense Often not categorized and indexed – resides all over the place Not Your Grand Dad's Records

21. Not Your Grand Dad's Records Copying does not lead to degradation Copying basically free Records copy themselves without your knowing Your servers, SAN's, etc. (file cabinets) may talk to each other without your knowledge

22. May have a recorded history that is not readily visible Deleted? Maybe - a trip to the digital landfills (yes, there may be multiple copies) is generally easy Distribution - moving bits, not atoms Not Your Grand Dad's Records

23. Not Your Grand Dad's Records May be interactive with other e-records, or have relationships that make viewing in isolation problematic May virtually shred itself to bits and form a cloud of information that, if asked nicely, can reassemble into (virtually) a sheet of paper

24. Formerly discrete and separate domains: telephone calls documents and correspondence photos, images, CAD music, video Now all members of the same family – DATA Records

25. Anything that is digital Not Your Grand Dad's Records

26. But Your Grand Dad's Records Can have: DNA Coffee stains Fingerprints

27. METADATA Data about data You are being watched, tracked and recorded (Your computer loves you) Complete (or not so complete) histories may be available In the file, backups, including earlier versions, print spool files, temp files, operating systems, other applications, network software, etc. May be relevant

28. METADATA Email is full of metadata dates, times, sender, recipients, forwards, sent, received, routing information, cc, bcc, opened/read, printed, attachments (and where they came from) Attachments may also have metadata

29. Where is the e-Evidence? PCs, Laptops Servers, SANs Backup media and libraries PDAs, cell phones, Blackberries Removable media, disks, thumb drives, USB devices GIS, GPS devices PlayStation, X-Box, I-Pod, I-Phone, WII, WII Fit

30. Where is the e-Evidence? Televisions, toasters, fridges - anywhere you can hide a chip The Network is the Computer - the Cloud, Social Media, A lot of data about you is in the custody of third parties or machines Production of records from third parties can be compelled by subpoena, Court Order, Letters Rogatory, etc. - or, you can be compelled

31. Electronic Records Contradictory nature: Fragile, fleeting, subject to change or modification booting up or down, or looking at a file can potentially destroy Persistent, wide-spread, difficult to locate and impossible to delete Undelete is possible, sometimes easy Virtual Voodoo – forensic techniques

32. Electronic Records Many potentially relevant records are: Not created by humans Not normally seen by humans (sometimes) altered or destroyed, but not always by humans Exact or near duplicates of other records

33. Electronic Records Computers keep enormous amounts of data and history on user activities: To be helpful To backup data in case of loss In the process of carrying out activities such as printing To avoid using computing power that the user may want To not have to decide what to delete

34. Finding the Evidence We can just manually review the records, right? Volume of Data: Kb = one page Mb = small novel, 5 Mb = all of Shakespeare Gb = a pickup truck full of books, 100 Gb = a library floor Tb = 50,000 trees, 10 Tb = the entire print collection of the U.S. Library of Congress

35. Library of Congress:

36. Library of Congress:

37. Terminology Active data: On directly accessible media Readily visible to the operating system and/or application software Immediately accessible without restoration or reconstruction

38. Residual (ambient) data: Not active Including in free or slack space on hard disks Data functionally deleted without recovery or special techniques Includes deleted files Terminology

39. Records Records Managers might not call metadata or residual data a record Records Managers might not call your Facebook page or tweets a record A lawyer would (subject to it being relevant and material)

40. Help!

41. Sedona Canada Working Group 7 of the Sedona Conference www.thesedonaconference.org www.thesedonaconference.org/wgs The Sedona Canada Principles Addressing Electronic Discovery Draft for public comment 2007 Final version 2008 Ongoing development and commentary

42. Sedona Canada Beginning to be accepted by the courts See, for example, Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 The judiciary have participated in the drafting

43. Sedona Canada ESI is discoverable Proportionality Nature, scope, complexity of case Amounts at stake Relevance of available ESI Importance of ESI to court’s adjudication Costs, burden and delay involved Reasonable and good faith steps to preserve potentially relevant ESI

44. E-Discovery Potentially relevant and material electronic evidence must be preserved and produced in litigation and failure to do so will result in sanctions Reasonableness and good faith are key (see Sedona Canada Principle 2)

45. Preservation A party is under a duty to preserve what it knows, or reasonably should know, is relevant and material in an action As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant ESI (Sedona Principle 3)

46. The meaning of Preservation • Broad in scope • Arises on anticipation of litigation, investigation or audit • Ensure that all potential sources of ESI are not modified or deleted • Even deleted versions of ESI may be recoverable and ordered producible • Reasonable steps having regard to the nature of the case required

47. What to Preserve • Preserve potentially relevant ESI; not all ESI • You cannot delete an electronic file simply because a paper version has been preserved – both must be preserved and produced • Electronic files contain important features such as metadata, HTML and attachments • Remove records that need to be preserved from any destruction sequence or schedule

48. What to Preserve • Electronic records provide details to the facts • Be over-inclusive, just in case • Reasonableness and good faith appear to be gaining acceptance as a standard in the courts • Meet and confer at an early stage

49. Litigation Hold • The process used by organizations to inform employees of anticipated litigation and the obligation to preserve evidence • Record management policies must integrate clearly and seamlessly with the litigation hold process • Upon anticipation of litigation, records management must work with counsel to ensure an immediate litigation hold on potentially relevant records • Convene a retention planning meeting with in-house counsel, client IT, records management and key employees

50. Litigation Hold • All potential sources of ESI must be identified • Just having a document retention policy is not sufficient – In fact, the policy may have to be modified to fit the requirements of the case • Back-up tapes or other legacy data, if relevant, must be preserved