Microsoft Wins Landmark Overseas Warrant Case

The US Court of Appeals for the 2nd Circuit recently ruled on the highly-anticipated ‘Microsoft Ireland’ case.

In a unanimous ruling, the three-judge panel found in favour of Microsoft, which was challenging a warrant for the search and seizure of data held on an Irish server.

In 2013, the United States District Court for the Southern District of New York issued the US Department of Justice a warrant under the Stored Communications Act (SCA). The Department of Justice believed that an email account hosted by Microsoft contained important information about a narcotics investigation. Microsoft provided relevant information held on US servers, but refused to produce the emails held in Ireland.… Read More

Failure to Preserve Results in Costly Review of Backup Tapes

“This litigation has been exceptional in its breadth, venom and expenses.” – Justice Turnbull

In Verge Insurance Brokers v. Richard Sherk et al., 2016 ONSC 4007, the defendants brought a motion seeking an order compelling the plaintiff to produce and review 66 backup tapes. The plaintiff objected on the grounds of proportionality and provided evidence that the exercise would cost an estimated $300,000.

Justice Turnbull ordered the plaintiff to restore and review the 66 backup tapes, despite the estimated cost of at least $300,000. Turnbull J., recognizing the exceptional cost, also made the point that had the plaintiff complied with an earlier order of the court, and properly preserved the relevant information, the motion would not have been necessary.… Read More

Collaborative Discovery Required

In Thompson v Arcadia Labs Inc, the plaintiffs brought a motion for relief requesting, among other things, several orders related to discovery. The plaintiffs are consultants that provided services to the defendant cybersecurity firm.

The parties did not agree on a protocol for exchanging documents, which resulted in unilateral attempts to satisfy production obligations. Master MacLeod, as he then was, (Master MacLeod was recently appointed a judge of the Ontario Superior Court of Justice) found that parties cannot take a unilateral approach to production and that cooperation is critical for defensibility and proportionality.

During the course of their business relationship, the plaintiffs created documents for the defendants, which were uploaded to a website.… 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.

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