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(D) A Norwich order is an equitable remedy of pre-action discovery against an "involved" third party. The basic prin- ciple underlying this type of order was described as follows by the House of Lords in the seminal case Norwich Pharmacal Co. v Customs and Excise Commissioners: "[I]f through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers." 1 Norwich orders have been granted in various situations, including: (a) Where the information sought is necessary to identify wrong- doers (as is the case in this example); (b) To find and preserve evidence that may substantiate or support an action against either known or unknown wrongdoers, or even determine whether an action exists; and (c) to trace and preserve assets. The following factors govern the determination of whether an applicant, like Company X, could be granted a Norwich order: (a) Whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim; (b) Whether the applicant has established a relationship with the third party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of; (c) Whether the third party is the only practicable source of the information available; (d) Whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure; and (e) Whether the interests of justice favour obtaining the disclosure. (C) An Anton Piller order authorizes a plaintiff to conduct a "private search" of a defendant's premises for the pur- pose of seizing and preserving relevant evidence. Such an order can be obtained ex parte after a statement of claim is issued but before it is served on a defendant. This type of order has been described as an exceptional remedy that should only be granted on clear and convincing evidence. In order to obtain an Anton Piller order, Company X would have to adduce convincing evidence that meets the following four essential conditions: (1) It has a strong prima facie case; (2) The potential or actual damage caused by the alleged miscon- duct of Company Y, David Smith and Claire Jones is very serious; (3) Company Y, David Smith and Claire Jones have in their pos- session incriminating documents or things; and (4) There is a real possibility that Company Y, David Smith and Claire Jones may destroy such material before the discovery process can do its work. 2 (B) The Supreme Court of Canada set out the test for a confidentiality order in Sierra Club of Canada v Canada (Minister of Finance). It stated that a confidentiality order should only be granted when: 3 (a) Such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) The salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its dele- 18 • OCTOBER/NOVEMBER 2012 INHOUSE terious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. The risk referred to in the first branch of the test must be real and substantial and well grounded in the evidence, and must pose a serious threat to the commercial interest in question. The Supreme Court also stated that the important commercial inter- est in issue must be one which can be expressed in terms of a public interest in confidentiality (i.e. it cannot merely be specific to the party requesting the order) where there is a general principle at stake. In this case, the short and conclusory affidavit filed by Company X falls short of meeting the test set out in the Sierra Club case. (B) Principle 9 of the Sedona Canada Principles states that during the discovery process, parties should agree to or, if necessary, seek judicial direction on measures to pro- tect privilege in relation to the production of electronic documents and data. The Commentary to Principle 9 refers to clawback agreements as such a mesasure. A clawback agreement is a non- waiver agreement under which the parties agree that: (a) Production without intent to waive privilege does not constitute a waiver so long as the producing party identifies the documents mistakenly produced in a timely manner after production; (b) The mistakenly produced documents as well as any notes or copies will be returned, deleted or destroyed by the receiving party; and 4 (c) If there is disagreement between the parties about the privil- eged nature of the documents or other issues, the documents will be reviewed by the court at an appropriate time. The Sedona Canada Principles provide that in order to find a clawback agreement enforceable, the court will likely require prior agreement between the parties that the parties' search meth- odologies will remove from the production set those documents that are potentially privileged. The thorough review methodology adopted by Company X should elicit such an agreement and, subject to being satisfied with the reasonableness of the review methodology adopted by Company Y, David Smith and Claire Jones, Company X should be able to negotiate a clawback agree- ment with the defendants in order to protect itself further against waiver of privilege. YOUR RANKING? One or less correct: might be time to brush up Two correct: not bad, but some further work needed Three correct: very well done, but not perfect four correct: excellent

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