Court File and Parties

Court File No.: CV-21-671986 Date: 20220509 Superior Court of Justice - Ontario

Re: CICADA 137 LLC, Plaintiff And: ANDEAN MEDJEDOVIC, Defendant

Before: FL Myers J

Counsel: Benjamin Bathgate, for the Plaintiff Fredrick Schumann, for the intervenors who are Plaintiffs in CV-21-673984 Duncan Boswell, for Ediz Medjedovic and Sanja Medjedovic

Heard: May 9, 2022

Endorsement

[1] On November 28, 2021, the court granted an Anton Piller order authorizing a search for passwords and other evidence concerning approximately $15 million in cryptocurrency tokens that the defendant is alleged to have taken unlawfully from an online cryptocurrency business operating as Index Finance.

[2] The order sets out certain rights of the plaintiff to copy data found during its search and certain rights of others to claim privilege.

[3] The defendant’s parents have stymied the plaintiff’s efforts to find their son throughout just by taking positions that have stopped the plaintiff in its tracks pending directions from the court.

[4] Today’s issue arises after the parents have completed a review of seized databases for privilege and claimed privilege over a few documents.

[5] After receiving the parents’ privilege claims, the plaintiff began its review of the copied media. It noticed that many documents were written in a foreign language. Although the parents had already identified documents over which they claim privilege, the plaintiff’s counsel asked the parents to re-confirm whether privilege is claimed over any foreign language document as well.

[6] The parents have not yet responded fully because (a) they want their computers back; and (b) they say there may be privileged information in some personal documents in the foreign language. They have not agreed to a deadline for the completion of their review of privilege of the foreign language documents.

[7] The plaintiff has frozen again awaiting further privilege clearance by the parents. It also objects to the parents’ delay and assertion of conditions before finalizing their response on privilege for the foreign language documents.

[8] The plaintiff does not want to return some of the parents’ computers yet because, while awaiting privilege clearance, they have not reviewed the copies against the original computer files to make sure that copying or imaging was successful. For example, after returning the defendant’s father’s computer to him, the plaintiff discovered that file on the computer used by the father were encrypted. By the time they asked him for an encryption key, he had just coincidentally upgraded his operating system and thereby prevented generation of a usable encryption key.

[9] The plaintiff does not want to be faced with any more coincidences – whether coincidental or otherwise.

[10] The parents have asserted their right to privilege generally and reminded counsel for the plaintiff that if it reviews privileged information counsel can be knocked off the record. That is a possibility. But there is also the possibility that counsel acts in good faith, in accordance with a court order, on fair and transparent notice to the interested parties. How likely is counsel to be removed from the record if it does everything legally and civilly but others tactically fail to make privilege claims despite fair notice and opportunity or if they assert extraneous conditions to compliance?

[11] It is now five months after seizure and the plaintiff has yet to review the data seized.

[12] The plaintiff was authorized to seize computers and devices to make copies. It has apparently held off confirming that the copying process worked for fear of inadvertently running into privileged documents. I can readily think of many ways it can test the copy set for completeness and the absence of password protected material without infecting counsel with possible privileged information.

[13] I understand that the plaintiff’s counsel is of the view that the parents are not cooperating. Counsel does not want to fall into traps being laid by feigned assistance or to provide opportunities for spoiliation by the parents.

[14] But there is no provision in the Rules of Civil Procedure for a court to supervise every single step in the Anton Piller process and give directions at every step, in advance, to protect counsel. I am aware that Rule 50.13 (6) is available and is useful to help break little procedural logjams in a lawsuit on an informal, expeditious, and affordable manner. I commend the use of Rule 50.13 (6) for that purpose. But it cannot become the refuge of the meek. There are not enough judges to bless every step in advance. Moreover, clever counsel will always be able to say that despite prior approval, the actual facts that ultimately happened differed from what was previously blessed. So then the matter gets heard twice.

[15] Counsel should be able to rest assured that if they comply with subsisting court orders and act lawfully, transparently, and civilly, they are not realistically at risk. They should get on with completing the copying process (including safely confirming the success of the process) and get the devices returned to the parents. The parents have counsel and will take their own advice about preservation of evidence.

[16] The plaintiff has given notice to the parents about a further request for privilege clearance in addition to the two hours period provided and the privilege claims already made by the parents. If the parents choose not to respond, the plaintiff can decide how it wants to proceed in light of the authority set out in the court’s order.

[17] I see no need for directions or orders other than telling the plaintiff to get on with it. If it fears tactical responses by third parties, it should ensure that it is proceeding under the court order, transparently, and civilly.

[18] I am not to be taken to be countenancing inapt bullishness. But counsel who remains cognizant of the duty to provide to all parties a fair process for the just resolution of a civil dispute in accordance with the law must be confident that the law is not a paper tiger. The court’s order says what it means and means what it says. That is enough basis for a party to do civilly and reasonably what it is authorized to do.

FL Myers J. Date: May 9, 2022