While modern technology makes it easier for departing employees to misappropriate confidential information, that same technology can also prevent or detect and record misappropriation such that a court may deny an Anton Piller Order.
In Irving Shipbuilding Inc. v. Schmidt,  O.J. No 1031, the court set aside an Anton Piller Order where the plaintiff could prove its case without using the “fruits of the search”. Because of its data loss prevention system, the plaintiff knew exactly which electronic files the defendant had taken with him prior to the AP Order’s execution. The existence of this type of data loss prevention software was a critical piece of evidence that must always be disclosed by the moving party. The plaintiff’s ability to prove its case without the fruits of the search meant that it had failed to establish either procedural or financial harm.
When analyzing the question of whether there is a risk of destruction, courts will consider the electronic format of the evidence and the ease with which it can be erased. But, in this case, there was no real possibility that the defendant might destroy evidence before discovery. To justify the “draconian” AP remedy, there must be a probable risk of destruction, not just a possible risk.
Bottom line – tread carefully and consider whether the volatility of the electronic evidence in a particular case will justify, or prohibit, an Anton Piller Order.
When metadata may contain relevant information, Canadian courts may well order its production. InLaushway v. Messervey  N.S.J. No. 107, the court upheld a production order that compelled the plaintiff to produce his computer so that it could be forensically analyzed. The Court of Appeal also found that there was nothing in the Nova Scotia Rules that limited the disclosure of metadata. Metadata was producible and presumed to be “electronic information”.
As for the competing privacy rights of the defendant, the Court of Appeal found that they were protected by the terms and conditions of the production order. That order contained specific directions as to matters that were to be excluded from the forensic expert’s report. The court was satisfied that the metadata that showed the plaintiff’s active use of the computer (the issue in the litigation) could be compiled while protecting any private information and distinguishing any third-party use of the computer.
It is encouraging to see Canadian courts balancing litigants’ competing interests in a way that permits proportionate disclosure while also protecting privacy interests.
If parties can’t agree on methods to make e-discovery proportionate and cost efficient, they risk having to produce all relevant documents, no matter the cost. In Cameco Corp. v. Canada 2014 T.C.J. No. 31.pdf, the Tax Court of Canada found that, despite the appellant having produced an enormous volume of ESI and spending huge resources in the process, there were deficiencies in the appellant’s production. Thus, “having agreed to conduct full disclosure”, the court ordered that the appellant provide all documents that were relevant and material to any matter in issue.
The court also took issue with the fact that the appellant had failed to identify the legal basis of redactions that it had made to the documents listed in its Schedule “A”. The appellant was ordered to do so, in addition to delivering a further and better affidavit of documents.
The respondent also argued that the appellant’s use of the metadata to describe the documents in its List of Documents was unsatisfactory because elements like the author and date in the description did not correspond directly to the author and date on the face of the document. The court agreed that it would be more helpful to only have the document identifier number and no author or date. In doing so, it held that as long as the appellant had provided sufficient description of the documents using a numerical identifier for each document, its identification of the document was satisfactory.
Once again, our Courts endorse proportionality and openness in e-discovery.
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