Archive for the ‘disclosure’ Category

Quebec judge issues Letters Rogatory on alleged spoliation of evidence by US and UK lawyers

August 10, 2011

Image by jon.hayes via Flickr

The Quebec court decision in Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2011 QCCS 2376 (CanLII), involved an application for letters rogatory in two tobacco industry class actions (recently settled on July 4, 2011,  between the Plaintiffs and the Government of Canada.  The Defendants had no part in this Agreement.)

The class plaintiffs sought to examine two attorneys: John Meltzer of London, England and David Schechter of Louisville, Kentucky, USA , whom they alleged were involved directly or indirectly with the spoliation of evidence (destruction of documents) by Imperial Tobacco Canada Ltee (“ITL”) during the early 1990’s:  Mr. Meltzer, then of the firm Lowell, White, Durrant, acted as outside counsel to British American Tobacco (“BAT“) and Mr. Schechter appears to have been in-house counsel at Brown and Williamson (“B&W“).

The Plaintiffs sought an order compelling each Attorney “to appear (near his place of business) to be examined, by way of a videoconference, by the attorneys for Petitioners on all facts of which he has knowledge with respect to the litigation between the parties and to give communication of any documents that may be in his possession and which are relevant to this litigation”. (more…)

Matthew Nied, “Unmasking Anonymous Defendants in Internet Defamation Cases”

March 14, 2011

Matthew Nied has published, “Unmasking Anonymous Defendants in Internet Defamation Cases: Recent Developments and Unresolved Issues”, Canadian Privacy Law Review, Vol. 8, No. 3, p. 31, 2011. Here’s the abstract:

While the internet provides users with an environment in which socially valuable speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these users are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these third parties generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of applications for such orders, courts have sought to consistently assess them in a way that strikes an appropriate balance between the freedom of expression and privacy interests of anonymous defendants and the reputational interests of plaintiffs.

Currently, there are two ways for plaintiffs to compel third parties to disclose the identity of anonymous defendants: by seeking an equitable remedy of discovery known as a “Norwich order”, or by seeking pre-action discovery or production under the applicable rules of civil procedure. Although courts have developed these approaches to strike a more appropriate balance between the competing interests, two unresolved issues remain to threaten that balance. First, while the approaches are similar, they differ with respect to the protection that they afford to the privacy and freedom of expression interests of anonymous defendants. Second, neither approach requires that anonymous defendants be informed of applications for the disclosure of their identities in order to enable them to represent their interests. This article surveys the two approaches, discusses the unresolved issues, and considers how courts may address them.

The article is available for download at SSRN here.

Anonymity Online Not Absolute, Judge Rules (via Ben Terris of The Chronicle)

September 16, 2009
In, ‘Anonymity Online Not Absolute, Judge Rules’, Ben Terris of The Chronicle reports on the recent  decision in Calvin Chang v. the Regents of the University of California, partially quashing a subpoena to disclose the identities of anonymous blog posters. Calvin Chang, a former police officer, sued the University of California alleging that anonymous comments on the The People’s Vanguard of Davis blog breached a settlement Chang had reached with the university to end an previous lawsuit.

According to the news report:

“In her ruling on Mr. Greenwald’s motion, Judge Shelleyanne Chang (who is not related to the officer) ruled mainly in the blogger’s favor—with one exception. While she did not required the identity of the anonymous commenters to be revealed, she did allow Mr. Chang to hire a third party to determine if they were “managing agents of the university.” If such a link is found, their identity can be revealed, she ruled.”

See also, Judge’s Ruling: Anonymity Protections Not Absolute, by David Greenwald of The People’s Vanguard of Davis (September 14, 2009).

H/T to Greg at the SectorPrivate blog.

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