Ontario Div. Ct. says POA defendants get the benefit of McNeil disclosure notwithstanding inspector privacy claim Tuesday, 29 May 2012

On May 3rd, the Divisional Court held that defendants to regulatory prosecutions under the Provincial Offences Act receive the benefit of “McNeil disclosure” notwithstanding a claim made by OPSEU on behalf of provincial regulatory inspectors.

“McNeil disclosure” is a form of Crown disclosure facilitated by a 2009 Supreme Court of Canada decision of the same name. The Court held that the Crown has a positive duty to build-out the Crown brief by making “reasonable inquiries” of other Crown agencies and departments. This duty, said the Court, includes a duty to collect and disclose records of police misconduct, at least where an officer is likely to be a witness at trial has record with some arguably relevant blemishes.

After McNeil was issued, the Ontario Ministry of Labour initiated a procedure for conducting CPIC checks on Ontario Occupational Health and Safety Act inspectors to support its disclosure duties. OPSEU grieved, and in March 2011 the Grievance Settlement Board held that the Ministry’s procedure did “not accord with an appropriate exercise of management rights under the [OPSEU/OPS] Collective Agreement.” The Toronto Star headline read, “Province slammed for secret criminal checks on labour inspectors.”

The Divisional Court has now held that the GSB erred in finding that an inspector’s criminal record should not be the subject of first party disclosure pursuant to McNeil. It explained:

A comparison of the role of the investigator in an OHSA prosecution with that of a police officer in prosecutions under the Criminal Code or Controlled Drug and Substances Act does not provide a sufficient basis upon which to differentiate the inspector from the police officer. Though the powers of police officers are broader, the essence of McNeil focuses on the role of police as investigator, accuser and witness. An OHSA inspector has the same role. Furthermore, these regulatory offences can engage severe penal consequences for an accused.

The Crown must exercise its own discretion in deciding what information falls within the parameters of McNeil and what does not, but in the first instance the Crown is obliged to at least obtain the information. Not all police records are relevant to the credibility or reliability of the inspector’s evidence and therefore relevant to the accused’s rights to make full answer and defence. However, there is no reason to think an inspector’s criminal record will have less bearing on the right to make full answer and defence in a regulatory proceeding than a police officer’s record in a criminal prosecution.

I agree with the Crown that McNeil does not just establish a conduit for the disclosure by the police through the Crown’s office; rather it establishes an obligation on the Crown to solicit readily obtainable information, like a CPIC record, or an internal record of misconduct in employment records. The obligation to disclose what is in the “possession and control” of the prosecution is not limited to what it has in its physical possession but also includes readily obtainable information or documents.

This is good news for POA defendants, who will receive the same treatment as criminal defendants based on this reasoning.

The Court also upheld part of the GSB order that imposed certain procedural safeguards to protect inspector privacy. The Court suggested (on a point that doesn’t appear to have been argued) that the GSB jurisdiction to make such a privacy-protective order arose out of its jurisdiction to interpret and apply the Freedom of Information and Protection of Privacy Act. This source of jurisdiction is highly questionable given FIPPA is a records-based statute that has a broad employment-related records exclusion. Indeed, the view that FIPPA does not protect employee privacy is reinforced by the Information and Privacy Commissioner/Ontario’s own position. The IPC has lobbied for elimination of the exclusion so Ontario public sector employees can enjoy statutory privacy rights (see 2004 Annual Report). It also routinely declines jurisdiction over employment-related privacy complaints.

OPSEU v. Ontario, 2012 CarswellOnt 6293, 2012 ONSC 207.

Source: "Shared" via Dominic in Google Reader | Dan Michaluk

Thank You - eDiscovery and Digital Evidence Conference and Symposium Tuesday, 29 May 2012

On behalf of the Center for Law, Science & Innovation, Sandra Day O'Connor College of Law, Arizona State University, LawCLECenter...

Source: "Shared" via Dominic in Google Reader | Michael Arkfeld

Gartner’s “2012 Magic Quadrant for E-Discovery Software” Provides a Useful Roadmap for Legal Technologists Tuesday, 29 May 2012

Gartner has just released its 2012 Magic Quadrant for E-Discovery Software, which is an annual report that analyzes the state of the electronic discovery industry and provides a detailed vendor-by-vendor evaluation. For many, particularly those in IT circles, Gartner is an unwavering north star used to divine software market leaders, in topics ranging from business intelligence platforms to wireless lan infrastructures. When IT professionals are on the cusp of procuring complex software, they look to analysts like Gartner for quantifiable and objective recommendations – as a way to inform and buttress their own internal decision making processes.

But for some in the legal technology field (particularly attorneys), looking to Gartner for software analysis can seem a bit foreign. Legal practitioners are often more comfortable with the “good ole days” when the only navigation aid in the eDiscovery world was provided by the dynamic duo of George Socha and Tom Gelbmanm, who (beyond creating the EDRM) were pioneers of the first eDiscovery rankings survey. Albeit somewhat short lived, their Annual Electronic Discovery[i] Survey ranked the hundreds of eDiscovery providers and bucketed the top tier players in both software and litigation support categories. The scope of their mission was grand, and they were perhaps ultimately undone by the breadth of their task (stopping the Survey in 2010), particularly as the eDiscovery landscape continued to mature, fragment and evolve.

Gartner, which has perfected the analysis of emerging software markets, appears to have taken on this challenge with an admittedly more narrow (and likely more achievable) focus. Gartner published its first Magic Quadrant (MQ) for the eDiscovery industry last year, and in the 2012 Magic Quadrant for E-Discovery Software report they’ve evaluated the top 21 electronic discovery software vendors. As with all Gartner MQs, their methodology is rigorous; in order to be included, vendors must meet quantitative requirements in market penetration and customer base and are then evaluated upon criteria for completeness of vision and ability to execute.

By eliminating the legion of service providers and law firms, Gartner has made their mission both more achievable and perhaps (to some) less relevant. When talking to certain law firms and litigation support providers, some seem to treat the Gartner initiative (and subsequent Magic Quadrant) like a map from a land they never plan to visit. But, even if they’re not directly procuring eDiscovery software, the Gartner MQ should still be seen by legal technologists as an invaluable tool to navigate the perils of the often confusing and shifting eDiscovery landscape – particularly with the rash of recent M&A activity.

Beyond the quadrant positions[ii], comprehensive analysis and secular market trends, one of the key underpinnings of the Magic Quadrant is that the ultimate position of a given provider is in many ways an aggregate measurement of overall customer satisfaction. Similar in ways to the net promoter concept (which is a tool to gauge the loyalty of a firm’s customer relationships simply by asking how likely that customer is to recommend a product/service to a colleague), the Gartner MQ can be looked at as the sum total of all customer experiences.[iii] As such, this usage/satisfaction feedback is relevant even for parties that aren’t purchasing or deploying electronic discovery software per se. Outside counsel, partners, litigation support vendors and other interested parties may all end up interacting with a deployed eDiscovery solution (particularly when such solutions have expanded their reach as end-to-end information governance platforms) and they should want their chosen solution to used happily and seamlessly in a given enterprise. There’s no shortage of stories about unhappy outside counsel (for example) that complain about being hamstrung by a slow, first generation eDiscovery solution that ultimately makes their job harder (and riskier).

Next, the Gartner MQ also is a good short-handed way to understand more nuanced topics like time to value and total cost of ownership. While of course related to overall satisfaction, the Magic Quadrant does indirectly address the query about whether the software does what it says it will (delivering on the promise) in the time frame that is claimed (delivering the promise in a reasonable time frame) since these elements are typically subsumed in the satisfaction metric. This kind of detail is disclosed in the numerous interviews that Gartner conducts to go behind the scenes, querying usage and overall satisfaction.

While no navigation aid ensures that a traveler won’t get lost, the Gartner Magic Quadrant for E-Discovery Software is a useful map of the electronic discovery software world. And, particularly looking at year-over-year trends, the MQ provides a useful way for legal practitioners (beyond the typical IT users) to get a sense of the electronic discovery market landscape as it evolves and matures. After all, staying on top of the eDiscovery industry has a range of benefits beyond just software procurement.

Please register here to access the Gartner Magic Quadrant for E-Discovery Software.

About the Magic Quadrant
Gartner does not endorse any vendor, product or service depicted in its research publications, and does not advise technology users to select only those vendors with the highest ratings. Gartner research publications consist of the opinions of Gartner’s research organization and should not be construed as statements of fact. Gartner disclaims all warranties, expressed or implied, with respect to this research, including any warranties of merchantability or fitness for a particular purpose.

Source: "Shared" via Dominic in Google Reader | Dean Gonsowski

U.S. Cross Border Ediscovery vs. EU Data Protection: Clash of the Titans Tuesday, 29 May 2012

Thanks to my dual qualification as an attorney in the U.S., as well as in the EU, I am in a unique position to act as a bridge between the exclusively common law tradition of pre-trial ediscovery in civil litigation in the U.S.  and the EU tradition of data protection of personal data.

Source: "Shared" via Dominic in Google Reader | Monique Altheim

BIM Collaboration – Fact or Fiction? Tuesday, 29 May 2012

BIM Collaboration – Fact or Fiction

As members of the AECOO¹ Community and stewards of the build environment, it is our obligation to collaboratively address our industry-specific productivity and business process issues as well as the our lack of significant progress relative to addressing environmental impacts.

Truth be told, there is only one significant barrier to efficient AECOO practices and it is our existing culture of mistrust, lack of open communication, and reliance upon antagonistic construction delivery methods.

The design-bid-build construction delivery method and associated practices such of awarding contracts to the lowest bidder do little more than a fuel to the fires of waste, protracted project timelines, change orders, and legal disputes.

Also, focus upon symptoms such as lack of effective technology usage and associated interoperability issues, have done little to drive change.  That said, it may be technology that is the acts as the catalyst to tear down the walls of mistrust and silos of independent groups and activities.

Cloud computing and associated social networking have already begun to dramatically alter the world and stand ready to forcefully impact the AECOO community.

A simplified, however, powerful definition of BIM is “the efficient life-cycle management of the built environment supported by digital technology”.   Achievement of this goal requires the integration of multiple knowledge domains and associated processes, procedures, and activities, which to date have been managed in isolation.   While detailed knowledge of each domain will remain a challenge, sharing of critical information with multi-disciplinary impact can be achieved if communication barriers are removed.   Cloud computing, social networking, and the associated use of integrated project delivery methods² will provide the basic foundation upon with BIM will be enabled.  An an actionable framework for professional AECOO collaboration, and increased productivity is on the horizon.   The timing and success, however, is totally dependent upon transformational changes regarding the ways in which AECOO professionals communicate and deliver their services.

 

1-Architerture, Engineering, Construction, Owners, Operations

2-Current examples include integrated project delivery (IPD) for new construction and job order contracting (JOC).  The latter is a form of IPD specifically targeting renovation, repair, sustainability, and minor new construction.

 

 

 

via 4Clicks Solutions, LLC – Premier software for cost estimating and efficient project delivery – Job Order Contracting – JOC, SABER, IDIQ, SATOC, MATOC, MACC, POCA, BOA, IPD …. and best implementation of RSMeans Construction Cost Data, including enhanced 400,000+ line items with detailed descriptions and modifiers.

Source: "Shared" via Dominic in Google Reader | pcholakis

New Book: Electronic Discovery for Small Cases Tuesday, 29 May 2012

Source: "Shared" via Dominic in Google Reader | Sharon D. Nelson, Esq.

Cloud providers cave into more flexible contracts Monday, 28 May 2012

Source: "Shared" via Dominic in Google Reader | Jeffery Fehrman

Internal investigations and the cloud at ACFI fraud conference Monday, 28 May 2012

I presented today on the topic of internal investigations and the cloud at the annual Association of Certified Forensic Investigators of Canada fraud conference.

The issue: outsourcing business IT systems to the cloud may impede access to information for audit and investigatory purposes. Data security is front and center in most outsourcings, but audit and investigation capability is also a key concern and is subject to unique requirements. Business owners should recognize that security and audit departments are likely stakeholders in most outsourcing projects and support the best possible needs analysis and requirements definition process.

Here are my slides:

 

Here are some related resources, including some data security resources that came up in discussion.

• J. Cheng, “IBM’s Siri ban highlights companies’ privacy, trade secret challenges”
• Digital Forensics Laboratories, “Digital investigations in the Cloud”
• T. Harbert, “E-discovery in the Cloud? Not so easy”
• W. Manning, “Investigating in the Clouds” (good, but password required)
• Hogan Lovells, “A Global Reality: Governmental Access to Data in the Cloud”
• K. Ruan et al, “Cloud forensics: An overview”
• A. Savvas, “Cloud providers cave into more flexible contracts”
• T. Trappler, “In the Cloud, Your Data Can Get Caught Up in Legal Actions”
• K. Zetter, “FBI Uses ‘Sledgehammer’ to Seize E-Mail Server in Search for Bomb Threat Evidence”

Finally, here’s a link to my comment on the recent Calgary Police Service case, which I used as an intro to a segment on handling an evidence trail that leads to an employee’s personal cloud-based account.

I hope this content helps you approach a pressing issue for internal investigators.

Source: "Shared" via Dominic in Google Reader | Dan Michaluk

10 Steps for Responding to a Corporate Data Security Breach Monday, 28 May 2012

Source: "Shared" via Dominic in Google Reader | Jeffery Fehrman

Are Facebook Users Giving up their Expectation of Privacy in Return for an Expectation of Imaginary Connection? Monday, 28 May 2012

If you are like me, you post on Facebook in leaps and bounds.
I have periods of silence, followed by bursts of sharing of photos, links to articles and status updates.
During one recent prolific posting period of two weeks, I noticed that none of my posts had generated any reaction whatsoever: not a single “like”, not a single “comment”.
I was devastated. I had become invisible and ignored. I had become a Facebook outcast. I felt like I had stopped existing.
I feverishly scanned my 30 something posts since the last sign of human recognition, and started to wonder whether I had made a faux pas somewhere along the line.
Had I posted something too racy? Something too controversial?
Had I posted too often? Where my posts too boring, too irrelevant?
Had all my Facebook friends blocked me? Had Facebook censored me?
Then by chance, as I was talking to one of my close Facebook friends over the phone, I learned that he had just not seen any of my posts for the last two weeks. This started me thinking: what if none of my 180 Facebook friends had seen any of my posts either? What if the simple reason for the lack of engagement was that I had become literally invisible on Facebook? I decided to conduct a little poll among a random list of a dozen or so Facebook friends and tagged them in a post with the question whether they had seen any of my posts for the last two weeks. The response was overwhelming: none of my friends had seen them. Except for a couple of more sophisticated Facebookers, who had a gazillion friends and availed themselves of all sorts of filter tools and therefore might not have seen my posts due to their own decision of filtering me out, the majority of my Facebook friends were just regular folks with a manageable load of updates to sift through, who genuinely liked to find out what their friends were up to, without any filters whatsoever.
That could only mean one thing: something in the Facebook machine had decided that whatever I posted should be invisible to the majority of my Facebook friends. My invisibility was not caused by me, nor by my Facebook friends.
While, in the end, I succeeded in resolving a technical glitch that seemed to have caused my total invisibility, this rather painful experience started me thinking about the importance of visibility or reach on social media. No matter how fascinating, original or groundbreaking the post, if no one sees it, what exactly is the purpose of posting it?

I was reminded of the age old question of when a tree falls in the forest, but no one is around to hear it, does it make a sound?

A lot has been written about privacy, or rather the lack of it, online and especially on the social media sites. The common wisdom, at least in the US, is, that in exchange for the privilege of using sites like Facebook, one gives away one’s private data for monetization purposes by those sites. The user gets to use the platform in exchange for his/her data that the platform provider gets to use. Translated into legal terms, one could say that the user of a social media site like  Facebook gives up his/her “expectation of privacy” for an “expectation of connecting with friends”. Except that in the case of Facebook (and probably other sites as well), this exchange is seriously flawed.
When you talk within the physical walls of a room, you are immediately aware who you are talking to and how wide your reach is: your audience is right in front of you.
When the average Facebook user posts something on Facebook, he/she assumes that all his/her friends on Facebook are able to see that post.
What the majority of Facebook users do not realize is that, according to a recent study, the average post is only visible to 12% of one’s Facebook friends. Facebook’s secret algorithms decide which post is seen by which friends. When you subtract from the 12% visibility all the friends who do not regularly check their news feed, or do not get notified of new posts and also subtract from the 12% the more sophisticated Facebook friends who have siloed  their friends into lists and groups and who have not included you in any of those and you are left with a very puny audience indeed.
The average Facebook user has 150 friends. The average Facebook user is also led to believe that all his posts will be visible to all his 150 friends. In reality, the average Facebook user’s post is visible to a maximum of 10 to 15 friends.
If the new paradigm is the exchange of private information for the opportunity to connect with friends, then social media sites like Facebook are not only not keeping their end of the bargain, they are also misleading their users concerning the exchange.
The agreement between the Postal Services and the users is that the user writes down an address and glues the required stamp on the envelope and the Postal Services delivers the letter. If the Postal Services would only deliver 12% of the mail you sent, you would righteously be outraged and start a law suit: you have a right to expect that each letter that you put the appropriate stamp on, gets delivered (or at least almost each letter, taking into account inevitable mistakes in delivery). Otherwise, you should only have to pay 12% of the stamp value. The same logic should apply for each status update on Facebook: with each status update, you give away private data that Facebook monetizes. You have a right to expect that each update gets delivered to its intended audience: your Facebook friends, at a minimum (unless you set your privacy setting to “only me”). By limiting the amount of your Facebook friends who can see your posts to 12%, Facebook is not keeping its purported end of the bargain. The whole concept of Facebook is built on the idea that one can share information with one’s Facebook friends. Facebook does not inform its users that they will only be able to share with at most 12% of their friends. The average Facebook user has a rightful expectation of reaching all his/ her Facebook friends with each update. Facebook monetizes 100% of all user’s updates, but gives only 12% of friend connection in return.
To add injury to insult, Facebook now plans to charge users who want more than 12% of their friends to see their posts on their news feeds, a few $$ per post with their new “Highlight” program.
To use the analogy with the Postal Services: this is the same as if the Postal Services would announce that if you want more than 12% of your letters to be actually delivered, you must pay a hefty premium ( on top of paying for the stamp). Otherwise, you can just continue to write the letter, pay for the stamp, send the letter, but sorry, only 12% of those letters will be delivered.
As far as I am concerned, I did a simple math exercise: I have around 180 Facebook friends. 12 % of 180 is 21.6. Out of the 21.6 friends who might see my post in their feeds, at least a couple will be too busy to check their newsfeed regularly and another couple will not have me included in the lists or groups that they do check. I am now down to approximately about 15 friends who might see my post. Out of those, maybe half will be inclined to occasionally engage with my posts. After making a cost/ benefit analysis of the time and effort it takes me to post, and the loss of privacy I experience by having each post monetized to third parties on the one hand and the benefit of connecting and sharing with a very small audience of maybe 15 Facebook friends on the other hand, I have come to the conclusion that the ROI is just not there for me.

Even a Facebook superstar with the maximum allotted 5000 Facebook friends, will only get a maximum reach of 600, and will have no say in who those 600 are, since they will be secretly and algorithmically determined by Facebook.

The only chance of ever reaching a significant audience is to make all your posts public and get hundreds of thousans of subscribers. Or to create a public Page, and get millions to “like” it.

Over time, Facebook has morphed from a site, where one could keep up with one’s friends, to an all-in-one Twitter, Google+, Pinterest wannabe public forum. Personally, if I want to post to those kinds of public fora, I post to Twitter, Google+, and Pinterest.

Where should I go to share with friends?

I am looking forward to reading your comments.

 

 

 

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Source: "Shared" via Dominic in Google Reader | Monique Altheim

564 – L’agencement des mots pour refléter sa vision des choses Monday, 28 May 2012

Vous me direz qu’il s’agit d’un fait anodin. Je vous répondrai qu’au contraire qu’il y a là matière à réflexion sur la responsabilité de ceux et celles qui ont comme métier de former les futurs professionnels du métier. Laissez-moi vous raconter.


Sur le chemin du retour, alors que nous discutions de méthodologie, j’ai eu droit de la part de mon observatrice à cette remarque surprenante : « À l’université, j’ai perdu des points dans un travail parce que j’avais mis en évidence la destruction par rapport à la conservation des documents comme résultat de l’application d’un calendrier de conservation. Ma prof m'a enjoint, à titre de future archiviste, de prioriser la sauvegarde des documents historiques sur ceux à éliminer ».

Ma réponse fut instantannée: « Dans les organisations, les décideurs s’attendent à quantifier les impacts économiques et fonctionnels de la mise en place d’un système de GID. La préservation des documents d’archives de conservation permanente se situe très loin sur l’échelle de leurs préoccupations. Et on ne doit pas s’en scandaliser : un ou une gestionnaire a une obligation d’efficacité et d’efficience. Pour s’assurer d’une oreille attentive, on se doit mettre en en évidence les mots qui retiendront leur attention. Et ce, tout en s’assurant, à titre de spécialiste du métier, de la pérennité de mémoire historique organisationnelle.

En fait, tout est question de faire la part entre les ‘objectifs’ et la ‘résultante’ : dans un contexte de management, ‘objectifs de la gestion documentaire’ = exploitabilité maximale des documents utiles et élimination planifiée de ceux devenus inutiles. Ce qui peut se résumer en trois mots : gestion des risques. Quant à la ‘résultante’, la préservation des archives dites ‘historiques’, elle ira de soi sans qu’on ait à y mettre l’emphase. Tout est question d’utiliser un langage propre à susciter l’adhésion de ses interlocuteurs. »

À son regard hébété, j’ai compris qu’elle allait avoir une bonne discussion avec sa prof… une fois la grève étudiante terminée.

Michel Roberge

Source: "Shared" via Dominic in Google Reader | Michel Roberge<br>Expert en gouvernance documentaire

The Challenge of Mobile Steroids Monday, 28 May 2012

For those of you who are receiving this post via email systems without embedded YouTube capability, the direct link to this video is HERE -- http://youtu.be/Ep4IB8QZ4PM.

cc

 

Do you have my #OccupyIT e-Book yet? Why not? It's Free HERE.

 

Source: "Shared" via Dominic in Google Reader | John Mancini

Litigation, e-Discovery, e-Motions, and the Triune Brain Sunday, 27 May 2012

To understand e-discovery you must understand litigation. To understand litigation you must understand the emotions of the litigants. They are primarily negative (think fear and loathing, hatred and greed); after all, they are in a dispute and animosities are often high. An attorney must see these emotions and understand how they impact the conduct of [...]

Source: "Shared" via Dominic in Google Reader | Ralph Losey

Shining a Light into the Black Box of E-discovery Predictive Coding Saturday, 26 May 2012

Source: "Shared" via Dominic in Google Reader | Jeffery Fehrman

5 things CIOs should know about big data Saturday, 26 May 2012

Source: "Shared" via Dominic in Google Reader | Jeffery Fehrman

My Google Profile Friday, 16 July 2010

Check out my new Google profile.

Source: Dominic's shared items in Google Reader | (author unknown)