English High Court Endorses Predictive Coding

In two recent decisions, the English High Court has approved the use of predictive coding in the discovery process.

The English Cases: Pyrrho & BCA Trading

In Pyrrho Investments Ltd v MWB Property Ltd., released in February 2016, both parties agreed to its use. On May 17, 2016, in an unreported decision^[1], the High Court granted BCA Trading, a defendant, an order permitting them to use predictive coding despite the plaintiff’s objection. Counsel for BCA Trading argued that a manual review would be disproportionate in cost, and that predictive coding would be more accurate.

These decisions follows similar decisions in the US in 2012 (Da Silva Moore v Publicis Groupe) and Ireland in 2015 (Irish Bank Resolution Corporation Ltd & ors v Quinn & ors).… Read More

Update: EU-US Privacy Shield Faces Sharp Criticism

In March, we discussed the proposed EU-US Privacy Shield in our blog.

At the time, the EU and US had just reached an agreement in principle and the European Commission (EC) released a draft “adequacy decision” regarding the proposed framework. The Privacy Shield is a regulatory framework designed to enable US companies to comply with strict EU digital privacy laws. It replaces the invalidated “Safe Harbour” agreement.

In the intervening months, several EU institutions expressed dissatisfaction with the proposed Privacy Shield. On April 13^th, the Article 29 Working Party published a critical opinion stating that the EC had overlooked “key data protection principles”.… Read More

Court Orders Production of Files in “Usable” Format

On May 24^th, the Alberta Court of the Queen’s Bench ruled that, in certain circumstances, meaningful disclosure requires the production of native electronic files.

Background and Arguments

In Bard v Canadian Natural Resources,[1] the plaintiffs brought a motion requesting, amongst other things, that the court order the defendants to deliver native Excel spreadsheets. The defendant had provided the data in TIFF image files as agreed to by the parties in the discovery plan. The plaintiffs claimed that TIFFs were not a “usable” format.

New EU-US Privacy Shield

On February 2, 2016, the European Commission announced that it had reached an agreement in principle with the United States on a new framework for data transfers.

This new EU-US Privacy Shield is necessary because of the October 2015 Court of Justice of the European Union decision which invalidated the Safe Harbour arrangement (discussed in further depth in this previous article).

On February 29, 2016, the European Commission released a draft “adequacy decision” and the legal text for the new agreement. The adequacy decision establishes that the safeguards under the Privacy Shield will offer equivalent data protection standards to those in place in the EU.… Read More

Privilege Risks and Electronic Discovery

On December 2, 2015, Chief Justice Rossiter of the Tax Court of Canada ruled on the Crown’s motion in CIBC v. The Queen[1] regarding, among other things, CIBC’s privilege claims and the adequacy of CIBC’s Schedule B with respect to electronic data.

The Crown’s motion related to CIBC’s appeal relating to its claim to deduct $3 billion in settlement payments, interest on the payments, and related legal expenses from its business income for the 2005 and 2006 taxation years. The Minister of National Revenue denied the deductions. From an eDiscovery perspective, there are two interesting issues from the ruling, one of which may impact professional liability insurance for privilege errors.… Read More