This is a one hour presentation delivered to Canadian lawyers in January 2011.

1. The Special Case of Email John Gregory and Dan MichalukJanuary 24, 2011

2. Outline Let’s deal with the following four challenges Managing email Locating email Accessing email Proving email

3. But First… What’s an Email Nowadays? Stored, text-based communications today SMTP communications – “classic email” Computer generated faxes Webmail, Webmail via social networking application Multi User Domains Text messages VOIP communications

4. Managing Email (The Litigator’s View) This is a problem for corporations Retention policies are key Email servers not ordinarily a business records repository Email can be on a “short list” for retention Pressure to move it off server, sometimes auto-delete Limit: likely be relevant to reasonably anticipated litigation This can be a discovery or trial issue Remmington (1998) – Common law duty to preserve? Broccoli v. Echostar (2005) – 21-day retention of e-mails

5. Locating Email …on the corporate network in an investigation Pre-confrontation Email server Lotus Domino, MS Exchange, GroupWise Mobile messaging server BES Network “clients” Post-confrontation Mobile Devices Application-based communications Company owned peripheral storage devices

6. Locating Email …outside the corporate network Individual controlled Personal e-mail accounts Home computers Third-party controlled Telecommunications providers Application providers Alex Cameron’s presentation covered access to these sources

7. Accessing Email On the corporate network Law has recognized a virtually unfettered right of employer access Basis – ownership of system plus notification Likely to see a greater balancing of interests Corporations should consider Routine monitoring based on special grounds Periodic audits with controls Investigations based on reasonable suspicion

8. Accessing Email Recent cases Quon – 2010, Supreme Court of the United States R. v. Cole – 2009, Ontario Superior Court of Justice France v. Tfaily – 2010, Ontario Court of Appeal City of Ottawa – 2010, Divisional Court

9. Accessing Email Employee communicates with counsel on employer systems A practical problem for employer counsel among others Key Canadian cases Daniel Potter – 2005, Nova Scotia Supreme Court Eisses v. CPL – 2009, Ontario Superior Court of Justice Counsel’s obligations are clear But the ultimate right of access is a matter of fact Is it better to attack basis for privilege than argue waiver?

10. Proving Email Email problem #1 – You didn’t send that Employee alleges termination on basis of pregnancy Email pre-dates her pregnancy by two months showing bona fide intent to terminate Employee says the e-mail is fabricated How would you prove the email?

11. Proving Email Email problem #2 – I didn’t send that Agreement to arbitrate executed through intranet Execution by entering employee ID number plus password then clicking through Supervisors can reset passwords Supervisor resets password to help employee get access Email confirmation sent to employee Employee claims supervisor executed agreement and denies reading confirmation email How would you prove the email?

12. Proving Email Cloud based communications are harder to authenticate Authenticate (go to ISP and not ASP) Figure out and prove the “system” whose reliability one would like to count on (or at least appreciate) No standardization – every application works differently Consumer oriented – so less rigorous than business systems Proprietary – so code etc. are not readily available Surrounded by TP apps – Tweetdeck, thousands of FB suppliers, who, where and what are they? Are cloud providers in the ordinary course of business, i.e. should they be considered reliable?

13. Resources www.stephenmason.eu John’s webpage (linked through Slaw) www.allaboutinformation.ca George L. Paul, Foundations of Digital Evidence Charles Morgan, E-Mail Law

14. The Special Case of Email John Gregory and Dan MichalukJanuary 24, 2011