The Ontario Superior Court of Justice recently ordered that defendants must produce reports relied upon, but claimed as privileged, in an affidavit filed in a response to a certification motion, only to the extent that they relate to the size and scope of the prospective class.
In Kaplan v. Casino Rama Services Inc., the plaintiffs brought a class action against the owners and operators of Casino Rama Resort, following a cyberattack that was disclosed by Casino Rama in November of 2016. The defendant, CHC Casinos Limited (which operates Casino Rama), notified approximately 200,000 individuals of the cyberattack.
In response to the certification motion, the defendants filed an affidavit, in which references were made to a third party cybersecurity company, which was retained to conduct an investigation into the cyberattack. The third party cybersecurity company provided two reports to the defendant and its counsel. The reports suggested that many of the individuals who received notices from the defendant were not actually affected by the data breach. Despite such references, the affidavit explicitly stated that the affiant did not waive any privilege over any communications between the defendant, its counsel, and the third party cybersecurity company.
Nonetheless, in advance of the cross-examination of the affiant, the plaintiffs brought a motion under section 12 of the Class Proceedings Act for an order requiring the defendants to provide copies of all of the report(s) and supporting documentation relied upon or prepared by the third party cybersecurity company in the course of its investigation. In response, the defendants argued that the documents were privileged.
Justice Glustein ruled in favour of the plaintiffs, to a degree, finding that the defendants were required to produce only those parts of the documents that were relevant to the certification motion; namely, any portions of the documents that related to the size and scope of the prospective class. Justice Glustein noted that it would be unfair for the defendants to simply ask the court to accept their evidence as to the size and scope of the prospective class, based upon the findings of an investigation that would not be produced.
Justice Glustein declined to decide whether the documents were in fact privileged, instead commenting that, assuming the documents were privileged, a party cannot disclose and rely on selected information obtained from a privileged source and then refuse to disclose other privileged information relevant to that issue. In such circumstances, waiver of privilege would be required as a matter of fairness, but limited only to the issue disclosed. Conversely, if the documents were found not to be privileged, then the principles of relevance would require the limited production of only those parts of the documents relevant to the certification motion. Thus, in the court’s view, the result of the motion would be the same, regardless of any finding of privilege.
The decision of Justice Glustein serves as guidance to parties to class actions, as it is indicative of the courts’ desire to ensure that all documentation related to the size and scope of a prospective class is put forward on a certification motion.