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.
1. CIBC cannot re-review records coded solely as litigation privilege

 

Chief Justice Rossiter found that litigation privilege did not apply to the hundreds of documents which CIBC claimed litigation privilege over. CIBC requested to re-evaluate the 670 documents that were coded as litigation privilege alone to assess whether they are also protected by solicitor-client privilege or settlement privilege, and to determine whether they are relevant. CIBC claimed that the coding for privilege was inaccurate because it had engaged third party providers to review the documents. This request was denied:

 

? [T]he fact is that CIBC engaged this third-party provider because it was the most efficient avenue to review the disclosure, both in terms of time and cost.

To add further delays to this case, which has already taken years in its pre-trial stages, is inefficient, unfounded and unfair to the Respondent. There is certainly something to be said for making sure everything is done properly, and this would be CIBC’s argument. But it had plenty of opportunity to do it properly; it chose a certain way of doing it, and it cannot now, many months later, ask for a mulligan. There must be some finality.[2]

 

2. Metadata may not be an adequate description

 

Another issue that arose on the motion was whether CIBC’s Schedule B was deficient because it did not contain enough identifying information for certain privileged documents. Section 84 of the Tax Court of Canada Rules (General Procedure)[3] provides that a list made in compliance with section 82 must enumerate the documents in convenient order and describe each document or bundle of documents “sufficiently to enable it to be identified”.

 

CIBC used the metadata embedded in the documents to generate the descriptions on its Schedule B. Some documents were only described as “Word document”, “Powerpoint presentation” or “electronic file”, with no indication of the author, recipient, or date. CIBC argued that, given the volume of electronic documents, using the metadata is the only reasonable practice for electronic document production.

 

Chief Justice Rossiter agreed that proportionality was an issue – there were about 21,000 documents listed on the 3,121 page Schedule B – but found that the more pressing concern was that the Respondent did not have sufficient information to assess the validity of the privilege claims. He concluded that descriptions like “Word Document” do not offer any useful information and that metadata is unreliable as an identifier when it comes to documents that are not emails. CIBC was ordered to provide the author and/or sender, the recipient, the date of creation, the subject line, and to describe the record without revealing information that is privileged for all non-email documents in its Schedule B.

 

Chief Justice Rossiter concluded his order with a reminder to the parties about the purpose of discovery:

 

This particular motion seems in large part to be the result of obstruction by CIBC when it comes to the discovery process. Discovery is about allowing both sides to fully prepare for trial and identify all relevant facts and issues. Full and open discovery promotes settlement and proper and efficient trials. Discovery is not about curtailing information production – it is about production of relevant information.[4]

 

It would be prudent for all counsel to bear these discovery principles in mind, as well as the potential issues regarding professional insurance for the coding errors for privilege.

 

Heuristica Discovery Counsel is a boutique legal practice focused on electronic discovery, evidence management, and related litigation and legal services.

 

For more information:

Crystal O’Donnell: crystal@discoverycounsel.ca

Candice Chan-Glasgow: candice@discoverycounsel.ca

 

Disclaimer:

This article is made available by Heuristica Discovery Counsel Professional Corporation for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. The article should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.

 


 

[1] Canadian Imperial Bank of Commerce v. The Queen, 2015 TCC 280.

[2] Ibid at paras 184-185.

[3] SOR/90-688a.

[4] Supra note 1 at para 362.

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