June 1, 2009
Alex
Cameron
Electronic Discovery and Electronic Decisions Highlight Privacy Issues in Litigation
by Alex Cameron
June 1, 2009
E-discovery can and often does raise important privacy questions for counsel and clients. The Sedona Canada Principles Addressing Electronic Discovery [PDF] identify privacy as one of the non-monetary costs that should be considered in applying the concept of proportionality (Principle 2). The Sedona Canada Principles also suggest that parties should agree to or seek court direction to protect privacy during e-discovery (Principle 9).
In light of a number of recent court decisions on e-discovery, counsel and clients must consider, inter alia, the scope of what should be produced in discovery (e.g. whether entire hard drives or other devices need to be produced), employees' expectation of privacy in devices owned by their employer, whether irrelevant personal information should be redacted, who can review information produced in discovery, and the location where documents can be reviewed.
Privacy concerns during discovery involve the disclosure of information exclusively between private litigants who are subject to the deemed undertaking rule. Yet, privacy must also tangle with the open court principle and particularly with the publication of personal information in court decisions published on the Internet. A recent Ontario case reminds us that the protection of privacy in this context depends in large part on the value that we place on privacy.
Wilson v. Bourbeau, [2009] O.J. No. 1841, 2009 CanLII 22559 (SCJ) involved a motion for redaction of certain personal information or for a sealing order. Such measures are often cited as a means to limit the invasion of a party’s privacy in litigation. The key paragraphs of the decision are reproduced below:
21 Wilson seeks to have redacted, or sealed, a portion of the record of the proceedings before the Board: [...] documents [that] include Wilson's name, her date of birth, her claim number, and medical information relating to the injuries she suffered in the motor vehicle accident in 1997.
. . .
39 Wilson submits that she is not comfortable with having her personal information including sensitive medical information available to the public.
40 As a general rule, a person's sensibilities, or discomfort must yield to the strong public policy in favour of openness. The discomfort expressed by Wilson is not a basis for removing the information from what will be the public record. As was stated in MacIntyre, supra, at 186-187, "curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance." In other words, there must be some public interest in the question which justifies the order.
. . .
43 Wilson's desire to protect her identity and what she describes as "sensitive medical information" does not raise a question of a serious risk to an important public interest. It is a personal view or preference on her part. With respect to Ms. Wilson, no important societal value is involved in her request for a sealing order.
. . .
57 Wilson's request for a sealing order or for redaction of the specified information is denied.
Contrasted against the foregoing approach, the Supreme Court of Canada recently adopted a new policy to help address privacy issues in court records. The policy includes the following provision: "Personal information, including personal data identifiers, shall not be included in a court record unless it is required for the disposition of the case." This test of necessity arguably provides a strong protection for privacy. The societal value of privacy is arguably recognized in the test itself. Although it remains to be seen how the test will be applied in practice, other courts might adopt similar tests as important privacy issues continue to arise in discovery and in access to court records and decisions.
Stay tuned for an important Sedona Canada paper addressing privacy issues in e-discovery, expected to be launched later this year (I am one of the drafters). Sedona Canada is also holding a CLE in Vancouver in September 2009. Privacy will be among the issues addressed.
E-discovery can and often does raise important privacy questions for counsel and clients. The Sedona Canada Principles Addressing Electronic Discovery [PDF] identify privacy as one of the non-monetary costs that should be considered in applying the concept of proportionality (Principle 2). The Sedona Canada Principles also suggest that parties should agree to or seek court direction to protect privacy during e-discovery (Principle 9).
In light of a number of recent court decisions on e-discovery, counsel and clients must consider, inter alia, the scope of what should be produced in discovery (e.g. whether entire hard drives or other devices need to be produced), employees' expectation of privacy in devices owned by their employer, whether irrelevant personal information should be redacted, who can review information produced in discovery, and the location where documents can be reviewed.
Privacy concerns during discovery involve the disclosure of information exclusively between private litigants who are subject to the deemed undertaking rule. Yet, privacy must also tangle with the open court principle and particularly with the publication of personal information in court decisions published on the Internet. A recent Ontario case reminds us that the protection of privacy in this context depends in large part on the value that we place on privacy.
Wilson v. Bourbeau, [2009] O.J. No. 1841, 2009 CanLII 22559 (SCJ) involved a motion for redaction of certain personal information or for a sealing order. Such measures are often cited as a means to limit the invasion of a party’s privacy in litigation. The key paragraphs of the decision are reproduced below:
21 Wilson seeks to have redacted, or sealed, a portion of the record of the proceedings before the Board: [...] documents [that] include Wilson's name, her date of birth, her claim number, and medical information relating to the injuries she suffered in the motor vehicle accident in 1997.
. . .
39 Wilson submits that she is not comfortable with having her personal information including sensitive medical information available to the public.
40 As a general rule, a person's sensibilities, or discomfort must yield to the strong public policy in favour of openness. The discomfort expressed by Wilson is not a basis for removing the information from what will be the public record. As was stated in MacIntyre, supra, at 186-187, "curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance." In other words, there must be some public interest in the question which justifies the order.
. . .
43 Wilson's desire to protect her identity and what she describes as "sensitive medical information" does not raise a question of a serious risk to an important public interest. It is a personal view or preference on her part. With respect to Ms. Wilson, no important societal value is involved in her request for a sealing order.
. . .
57 Wilson's request for a sealing order or for redaction of the specified information is denied.
Contrasted against the foregoing approach, the Supreme Court of Canada recently adopted a new policy to help address privacy issues in court records. The policy includes the following provision: "Personal information, including personal data identifiers, shall not be included in a court record unless it is required for the disposition of the case." This test of necessity arguably provides a strong protection for privacy. The societal value of privacy is arguably recognized in the test itself. Although it remains to be seen how the test will be applied in practice, other courts might adopt similar tests as important privacy issues continue to arise in discovery and in access to court records and decisions.
Stay tuned for an important Sedona Canada paper addressing privacy issues in e-discovery, expected to be launched later this year (I am one of the drafters). Sedona Canada is also holding a CLE in Vancouver in September 2009. Privacy will be among the issues addressed.
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Here in Texas (USA), after a long time, our Supreme Court recognized a fundamental right of personal privacy, which it described as "of constitutioanl significance" although the specific term "privacy" is not in our written state or federal Constitutions, and has adopted parts, but only parts, of ALI Restatement of Torts on Privacy. This specifically includes medical information the publication of which a person of ordinary sensibilities would find highly offensive, which would appear to cover the material in the case cited. We are also now recognizing identity theft risks of publication in open court records, typically picked up by commercial data miners and sellers, of identifiers such as date of birth, Social Security and Driver's License numbers, etc. Some of this is also now recognized in legislation including state medical and mental health codes, etc.
US federal HIPAA medical privacy law still has big loopholes driven by marketers, etc. Serious questions currently exist whether the law will cover electronic medical records held by third party records entities, which may have links to credit reporting and other data brokers, when these, pushed by both political parties etc. as a health care cost control and improvement measure, which seems legitimate, are implemented.
We've come a long way. When I started working on this issue in the mid nineteen sixties and early seventies, and testified before a state senate committee, they did not realize Texas did not yet have a doctor-patient privacy law.
Federal fair credit reporting, etc., laws that limited how long certain records could be kept and published have effectively been nullified because, once on Internet, they're there and readily available forever. Also, if you challenge the accuracy of a record, it stays live under the law longer than if you don't, discouraging challenges, as intended by the big reporting agencies. When the law set a $25,000 USD salary minimum for jobs for which an "investigative" credit report was permitted to be made and used, that was what big city bank presidents made, now that covers legal secretaries and school teachers. Under our First Amendment freedom of press jurisprudence, it is almost impossible to win a case against a credit reporting or data broker, etc.
Years after Texas Supreme Court (civil) found privacy a fundamental right, Texas Court of Criminal Appeals, our highest state criminal appellate court, found, with little support and no testimony, that we had "no tradition of personal privacy." Some results are appalling to everyone I know, conservatives and liberals alike, except big companies who want to hire people cheap because of such impediments to employment and those aligned with them. I've found myself onboth sides of the natural tension between open public records and privacy law, but open records law is really about how our officials and government entities do their job, not about access to the intimate detials of ordinary citizens' lives.