Executive Summary: Key Legal and Evidentiary Issues

• Scope and impact of Flo’s alleged sharing of sensitive menstrual and fertility data with third-party analytics and marketing partners without valid consent.
• Contested reach of solicitor–client privilege, litigation privilege and settlement privilege over FTC investigation materials, internal reviews, board minutes and compliance reporting.
• Relevance and discoverability of documents and testimony arising from the Wall Street Journal exposé, the U.S. FTC investigation and parallel U.S. and British Columbia class actions.
• Extent to which Flo’s post-investigation conduct (compliance reviews, audits, SDK removal, partner dealings) is admissible to prove liability and support punitive damages.
• Proper procedural standards for timely, well-motivated objections in examinations on discovery and the consequences of vague, late-raised privilege claims.
• Identification and disclosure of Flo’s corporate structure, business model and partner relationships to assess data monetisation and the alleged deprivation of the commercial value of users’ personal information.

Background and nature of the class action

Option Consommateurs brought a privacy-focused class action in the Quebec Superior Court (Class Actions Chamber) against Flo Health Inc., the developer of the Flo mobile application. The app provides fertility information and helps women track data across the reproductive cycle. [2] The representative plaintiff alleges that, between 1 June 2016 and 23 February 2019, Flo disclosed highly sensitive personal information from Quebec users of its menstrual, ovulation and fertility-tracking app to third parties without consent, thereby depriving users of the commercial value of their data. [3]–[5] The class was authorised on 30 November 2022 for all persons domiciled in Quebec who used the Flo app during that period. [5] Common issues include whether Flo communicated personal information to third parties, whether it had undertaken to protect that data and refrain from such communication, whether any disclosure was consented to, whether the data had commercial value, whether members lost an equivalent gain, and whether they are entitled to costs of the proceedings and punitive damages. [6] The claim is framed as a consumer-privacy class action involving alleged misuse and monetisation of personal data.

Procedural history and FTC context

After authorisation, the representative filed the originating application on 28 February 2023. [7] The parties’ case protocol provided for an examination of a Flo representative knowledgeable about (1) how group members’ information was shared with third parties during the class period, (2) Flo’s business model and data monetisation, (3) the identity of group members, and (4) the Wall Street Journal (WSJ) investigation and the U.S. Federal Trade Commission (FTC) investigation. [8] Before the examination of Flo co-founder and Chief Product Officer Maxim Scrobov, the representative served twelve pre-engagement requests, nine of which were contested. [9] In a 11 September 2024 judgment (Option Consommateurs c. Flo Health Inc., 2024 QCCS 4600), the court partly upheld and partly rejected Flo’s objections, holding in particular that any litigation-related privilege over FTC investigation materials had expired because the FTC matter had concluded and was not closely linked to the Quebec class action. [10] Flo had been investigated by the FTC after a WSJ article; the FTC issued a Civil Investigative Demand in July 2019 and received extensive information and documents from Flo in mid-2019. [27]–[28] The FTC then filed a complaint against Flo, alleging that Flo had entered into contracts with third-party “marketing and analytics services” companies and transmitted user information to them without limiting how those companies could use the data. [30] An agreement was reached in June 2021, and on 17 June 2021 the FTC issued a Decision and Order requiring Flo to notify users and implement specified remedial measures. [31]–[32] This U.S. regulatory backdrop is central to the Quebec claim because the class action is premised on the same underlying conduct: third-party data sharing and alleged privacy violations.

The Scrobov examination and the objections

On 21 May 2025, the representative examined Mr. Scrobov by videoconference for more than five hours. [12] Flo objected to a large number of questions and related undertakings, invoking solicitor–client privilege, litigation privilege, settlement privilege, and lack of relevance—particularly where questions touched on FTC proceedings, parallel actions in other jurisdictions, internal reviews and board-level discussions. [13], [21] The objections were later grouped into six themes: the WSJ and FTC investigation; the identity of the defendant and its representative; Flo’s alleged practices; proceedings in foreign jurisdictions; source code; and Flo’s partners. [20] The judge noted that Flo’s counsel frequently objected in vague terms (e.g., “relevance” and generic “privileges”) without specifying which privilege was invoked, and often clarified or expanded the grounds only later, in written argument before the objections hearing. [22] This pattern was held to be problematic because objections must be raised promptly, on the spot, and must be properly motivated to avoid strategic obstruction and to allow both sides to prepare effectively for trial in accordance with procedural principles. [23]–[24] The court accepted that the late and evolving nature of many objections had disadvantaged the representative and stated this would be taken into account in deciding the objections. [24]

Legal framework on privilege, settlement privilege and regulatory investigations

Flo argued that communications relating to the FTC investigation—including internal and external communications, consultant reports, FTC interrogations and sworn statements, and ongoing compliance reporting—were protected by settlement privilege, litigation privilege or solicitor–client privilege. [25], [33], [38] The court reviewed the Quebec and Canadian authorities on settlement privilege, citing Union Carbide Canada Inc. v. Bombardier and Terra Location, and confirmed that settlement privilege is an evidentiary rule excluding proof of communications made for the purpose of settling a dispute, subject to recognised limits. [34] For settlement privilege to attach, three cumulative conditions must be met: an actual or anticipated dispute, a communication made for the purpose of settling that dispute, and an express or implied intention that the communication remain confidential if settlement fails. [35] The court noted that regulatory investigations can indeed create potential litigation situations giving rise to litigation privilege. [36] However, it stressed that not all FTC-related communications fell into that category and that many materials were created in response to the FTC’s investigative function, not in the course of settlement negotiations. [43] The judge reiterated what had been said in the 2024 decision: any litigation privilege linked to the FTC investigation would have lapsed once that matter concluded, absent closely related proceedings, and the Quebec class action did not qualify as such a closely linked proceeding because the parties, causes of action and objects differed. [10], [37]

Assessment of Flo’s generic affidavit and claim of privilege

To support its privilege claims, Flo filed an affidavit by Mr. Scrobov asserting, in broad terms, that all communications, dealings and reporting between Flo and the FTC and with any consultants relating to the investigation and settlement were handled through in-house and external counsel for the purpose of obtaining legal advice, litigation and settlement. [39] The affidavit also stated that Flo’s Chief Legal Officer and/or outside counsel attended board meetings dealing with the FTC investigation and assisted in preparing related board materials, and that the consultant responsible for the FTC-mandated compliance review was retained through outside counsel. [39] The court found this affidavit “generic” and carefully tailored to cover all possible privilege arguments, but inconsistent in tone and detail with Mr. Scrobov’s examination testimony, where he appeared poorly informed and vague. [40] The judge held that such a blanket, high-level assertion of privilege was insufficient to demonstrate, even prima facie, that all the disputed material met the criteria for solicitor–client or settlement privilege, especially given the investigative character of much of the FTC process. [40], [43]

Rulings on objections relating to the FTC investigation and compliance reporting

The court then ruled objection by objection, focusing first on the FTC-related theme. Objections aimed at blocking questions about which Flo employees were examined by the FTC and the nature of their examinations (objections 12, 13, 14 and 20) were rejected. [45] The court held that the FTC investigation lay at the heart of the Quebec case and that the examinations had not been conducted in the course of settlement negotiations, so settlement privilege did not apply; the late invocation of privilege further weakened Flo’s position, and the affidavit did not prove solicitor–client privilege. [45] Objections to questions about “Compliance review” and “Compliance Reports and Notices” that Mr. Scrobov signed and sent to the FTC (objections 16, 17, 66, 67, 68 and 69) were also rejected. [46] Those reports were communications between Flo and the FTC, ordered by the FTC under the Decision and Order, and not lawyer-client communications; they were not prepared primarily for litigation, arose after the FTC dispute was resolved, and were therefore not protected by litigation or settlement privilege. [46] The court found them relevant both to understanding what data Flo collected and disclosed and to the potential assessment of punitive damages, since post-incident conduct can be probative. [46] Questions about the cause and timing of the FTC investigation, including when Flo first learned of it (objections 22, 48, 56), were likewise held to be pertinent and not privileged; a simple notification that an investigation has begun does not satisfy the Solosky test for solicitor–client privilege. [47]–[49] A broad request for board minutes dealing with the FTC investigation (objection 57) was allowed; the court rejected the idea that mere presence of counsel at a board meeting or involvement in preparing board materials automatically transformed all board discussions and minutes into privileged communications, again applying Solosky and later case law. [50] Related objections concerning consultants engaged to assist with the FTC investigation (objections 59 and 60) were dismissed on the same basis: the fact that lawyers retained or coordinated consultants does not, by itself, establish a privileged lawyer-client communication. [51] The court also confirmed that its earlier order on pre-engagement no. 7—requiring disclosure of internal and external documents relating to the FTC investigation—remained in force and that Flo’s response remained incomplete; an objection seeking to revisit that point (objection 61) was rejected, though an objection where Flo credibly claimed not to possess additional requested documents (objection 63) was maintained. [41]–[43], [52]–[53]

Treatment of foreign proceedings and related expert evidence

Some questions sought to explore class actions or proceedings in other jurisdictions, notably the United States and British Columbia. The court acknowledged that evidence from discovery in similar cases with overlapping facts and parties can be relevant and admissible, as recognised by the Supreme Court of Canada. [62] However, objections 3, 29 and 30—targeting broad questioning on foreign proceedings—were upheld because the questions were overly expansive and amounted to fishing expeditions. [62] Conversely, other questions that more concretely probed the relationship between the U.S. and Quebec cases and the functioning of the Flo app in the U.S. (objections 27 and 28) were allowed as reasonable and pertinent, particularly given the link to the FTC investigation. [65] A separate cluster of objections concerned Flo’s expert, Chris D. Karkanis. After Flo filed a revised expert report on 11 November 2025 in which Mr. Karkanis disclosed his mandate in the U.S. proceedings, the court treated that as a new fact warranting reconsideration of its prior 2024 ruling. [19], [66] Objections to questions about his mandates and examination transcripts in related foreign files (objections 36, 37, 38, 39, 45 and 46) were rejected; the court held this information relevant and not privileged. [66] However, other objections seeking detailed billing information and other mandates of the expert (objections 40, 41, 42, 43, 44 and 47) were maintained as premature, leaving such issues for a later stage if necessary. [67]

Internal reviews, audits, complaints and corporate structure

The judgment also examined objections to discovery about internal investigations and audits. Objection 54 related to an “internal review” launched by Flo after the WSJ article. Although Flo claimed the review’s conclusions were protected by solicitor–client privilege, the court noted that Flo had itself mentioned this internal review at paragraph 59 of its Defence and that Mr. Scrobov had testified to its conclusions—namely, that the WSJ article contained false information and that the allegations against Flo were unfounded. [59] Because the witness did not describe a privileged lawyer-client communication and Flo had voluntarily put the review in issue to show diligence and transparency, the court found that privilege either never attached or had been waived; the objection was therefore rejected. [59] By contrast, an objection to a question about the number of recent complaints received by Flo (objection 55) was upheld as irrelevant. [60] Objections to questions about a document summarising the consequences and impact of the WSJ article and a related board meeting that discussed earlier privacy problems (objections 49, 50, 51 and 52) were rejected, again on the basis that board discussions are not presumed privileged merely because counsel may be present and because the information was relevant to responsibility and remedial measures. [57] On corporate structure, the court considered objections 7 and 8, which touched on undertakings aimed at clarifying the contractual relationship between class members and Flo’s various corporate entities. Flo had provided partial answers in a letter of 7 November 2025. The court maintained objection 7 but rejected objection 8, finding that an organisational chart and information on the structure of Flo’s corporate entities were relevant to the case. [56]

Flo’s partners, SDKs and alleged data-sharing practices

A key evidentiary theme concerned Flo’s relationships with partners such as Bayer, Procter & Gamble and Myovant, and the alleged sharing of app-user data through software development kits (SDKs) and related tools. The court highlighted email exchanges produced as pre-engagement in which a discussion between Flo and Bayer suggested that Flo transmitted user information to third parties through SDK tools—conduct that lies at the core of the originating application. [69] During his examination, Mr. Scrobov confirmed that Flo had an “educational project” with Bayer and partnerships with Procter & Gamble and Myovant, involving the sharing of dashboards, screenshots or reports, while asserting that no raw data, third-party analytics accounts or internal analytical systems output were transmitted. [69] Objections 82–85 and 88–90, which had sought to block questioning and undertakings concerning these partners and the data shared, were rejected. The judge found that these questions went directly to common issues about whether Flo communicated class members’ personal information to third parties and whether that information had value. [69] A related objection (no. 80) to questions about an email from a Bayer employee to Flo’s Chief Business Development Officer referring to a 2019 data privacy audit and some of its conclusions was also rejected. [61] The court regarded the audit as relevant because it addressed topics central to the litigation and concluded that Flo had not shown the audit or related communications to be privileged, again noting the generic nature of the Scrobov affidavit and the failure to specify the type of privilege invoked. [61] Finally, objection 87, which targeted questions about an email chain indicating that Apple had warned Flo about SDKs, after which Flo removed the SDKs from its app, was rejected. [70] The court noted that in its Defence Flo had alleged that it removed the SDKs because of the WSJ article, so the Apple warning was clearly relevant to causation and credibility. [70]

Source code production and confidentiality protections

Beyond documentary undertakings, the judgment also records Flo’s consent to produce the application’s code in a particular form. The court took note that Flo agreed to provide the Flo App as executable digital files, specifically nine executable builds covering both Android and iOS versions across the certified class period. [76] This production is subject to a strict confidentiality regime: the code will be designated “HIGHLY CONFIDENTIAL” under the parties’ 14 February 2024 Confidentiality Agreement and will be accessible only to lawyers and experts (“for lawyers’ and experts’ eyes only”). [76] This arrangement reflects the tension between the representative’s need to examine how the app handled and transmitted user data and Flo’s legitimate interest in protecting proprietary code and trade secrets.

Overall outcome, successful party and monetary consequences

In the result, the court issued a detailed set of directions. It found Flo in default of fully complying with the prior order on pre-engagement no. 7 and ordered it to comply with that September 2024 ruling by disclosing all internal and external documents in its possession relating to the FTC investigation. [71] The court rejected a substantial block of objections (including 2, 8, 12–14, 16–17, 20, 22, 27–28, 36–39, 45–46, 48–52, 54, 56–57, 59–61, 66–69, 80, 82–85 and 87–90) and maintained a more limited set (3, 7, 26, 29–30, 40–44, 47, 53, 55 and 63), resulting in broad additional discovery obligations for Flo. [72]–[73] Flo was ordered to provide, within 60 days, all undertakings from the 21 May 2025 examination that were not objected to (a long list of “U-” undertakings) and, within the same timeframe, written answers and documents for all questions and undertakings where objections had been rejected. [74]–[75] The court also suspended the deadline to set the case down for trial by up to 90 days and directed the parties to file a modified case protocol within that period. [77] On balance, this interlocutory decision is procedurally favourable to the representative plaintiff: the court compels expansive disclosure of FTC-related materials, compliance reports, internal reviews, board-level records and partner-related communications, significantly weakening Flo’s broad privilege assertions and narrowing its ability to resist discovery. However, the judgment does not determine liability on the merits and does not award damages or quantified costs. The court explicitly states that costs (“frais de justice”) are to follow, meaning they will be dealt with later. [78] Accordingly, while Option Consommateurs is the more successful party in this objections ruling, there is no monetary award or specified costs amount ordered in its favour in this decision, and the total damages and costs, if any, cannot yet be determined from the record.