Canada: Records Management @ Gowlings: October 17, 2011


Frangione v. Vandongen et al., 2010 ONSC 2823.

Plaintiff was involved in two car accidents in respect of which he claimed he had suffered head and neck injuries which caused him loss of enjoyment of life. Plaintiff had a computer at his mother's residence and defendant requested access to entire hard drive and private portions of plaintiff's Facebook page for purposes of forensic examination by defendant's expert.  More specifically, on a motion before the Superior Court of Justice, defendant requested preservation of the computer's contents including internet search entries, production of Facebook material including wall postings, correspondence with 'Friends' and photos, production of a supplemental affidavit of documents identifying the relevant documentation on the hard drive, and permission to cross-examine on the supplementary affidavit.  In response, plaintiff produced publicly accessible portions of his Facebook page but refused to provide private materials from Facebook and his mother's hard drive, on the basis that such content represented prior communications with third parties that was privileged and worthy of protection on privacy grounds, and that medical issues should be determined on the basis of reports filed by plaintiff's physicians.  Plaintiff had claimed that as a result of injuries he could neither sit nor stand for more than a brief period of time, and that his computer usage was limited to 30 minutes per day – defendant accordingly argued that the materials were relevant to accurately assessing damages for loss of enjoyment of life and the ability to work.  After a further production, defendant complained that the materials provided were less than satisfactory: Facebook correspondence with third parties was still omitted, as was content from the plaintiff's 'Profile' page including matters coming under the 'Info' tab which would have provided insight into online games played by the plaintiff, groups he would have joined, and videos he had posted.

The court was asked to address the preliminary issue of whether a motion filed and heard prior to amendments to r. 30.02 of the Rules of Civil Procedure, but disposed of thereafter would be subject to the rule as it existed pre-amendment or subject to the new rule.  Rule 30.02 effectively changed the standard from 'semblance of relevance' to strict relevance in determining whether production of documents should be ordered for discovery purposes.  The Court held that the point for determining whether an old or new rule of procedure applied in a proceeding before the Court is the time at which the matter is disposed. In the absence of a 'transitional' provision to govern proceedings prior to the time of amendment, new procedure applies retrospectively to all matters in a proceeding disposed of after an amendment.

On the basis of the plaintiff's limited productions of publicly accessible Facebook photos and correspondence, the court found that it was possible to infer that the plaintiff's privately-accessed Facebook site would contain similar documents relevant to the assessment of damages for the losses claimed.  In dealing with the plaintiff's assertion that a production order should be denied on the basis of privacy concerns, the Court took into consideration the more than 200 'Friends' that were provided access to the disputed content, and the plaintiff's admission that only 5 of those 200 persons were 'close friends'.  The plaintiff's assertion of privacy, accordingly, could not be sustained.  However, the court's willingness to entertain the plaintiff's argument may have indicated a valid avenue for challenging production of 'private' Facebook content in appropriate circumstances.   The plaintiff was ordered to produce the 'private' Facebook content.

With respect to the defendant's request to conduct a forensic examination of the plaintiff's personal computer hard drive, the court took an approach which divided the production request into requests for three separate bodies of electronic material: (1) 'electronic documents' consisting of materials created by the user of the computer using, for example, word processing software, (2) 'metadata' which was described as a report of recorded information generated by computer software which shows the use to which the plaintiff puts his or her computer, and (3) internet browser histories which describes the time and frequency of internet usage, as well as specific sites used and activities engaged in while visiting.

In addressing the defendant's request to access virtually all electronic documents contained on the computer's hard drive, the court noted that in the absence of evidence that the plaintiff's family members logged in under other user settings with separate passwords, allowing access to the entire hard drive would pose a significant threat to the privacy of those family members who had created documents not relevant to the proceedings.  In failing to specify specific documents that could be sought in a forensic analysis to the exclusion of all others, the defendant had requested unrestricted access to the documentary contents of the hard drive akin to a request to have access to an entire filing cabinet in search of a possible single admission.  The issue was the amount of time spent on the computer – information about the specific websites visited by the plaintiff or the content of e-mails was outside of the more stringent test of simple relevance demanded by Rule 30.02.  The request was framed too broadly, and the privacy concerns of the non-parties, furthermore, outweighed the possibility of finding relevant documents.

Metadata, conversely, was relevant to the quantity of time the plaintiff spent using the family computer and avoided the intrusive investigation of irrelevant documentary contents.  However, this was not the end of the r. 30.06 inquiry. If the metadata merely corroborated usage evidence already put in by way of medical reports it would be far outweighed by the expense of producing such evidence, and the privacy concerns of family members who also used the computer and whose email correspondence, calendars, personal diary entries, banking information, and passwords and log-in information could be revealed by such a disclosure.  Though the court held that the disclosure of metadata had potentially probative value with respect to a fundamental issue at trial, the defendant provided no pressing basis for obtaining the metadata: the plaintiff presented no inconsistency in statements made to the court and his physicians regarding daily computer use, and the inability to determine when the computer was being used by the defendant or other family members, diminished the probative value of the information.

The defendant's request for the preservation of all material on his personal computer was dismissed.

Zecher v. Josh, 2011 BCSC 311, [2010] B.C.J. No. 421

Issues: Discovery production obligations; requirement to establish materiality and relevancy when seeking production

This action was a personal injury claim where liability, quantum and causation were in dispute.  The defendants' application related to production of documentation by the plaintiff and third parties in relation to the particulars of the wage loss claim.  The defendants sought production of three documents: i) statements from the plaintiffs student line of credit related to occupational training; ii) particulars of the wage loss claim; and iii) prescription records dating back to five years before the accident at issue.

The court in this instance was critical of very broadly worded requests for particulars from defence counsel with actually demonstrating the relevancy and materiality of evidence.  In finding that the defendants were actually seeking an assessment of the plaintiff's wage loss claim, the court found no authority for an order that the plaintiff provide a calculation or assessment of the wage loss claim in advance of trial.  The court went on to state that a plaintiff may be obliged to provide information on a wage loss claim (as opposed to an assessment) under the rules of discovery.  However, there was no evidence in this case that the plaintiff was asked in discovery to inform himself on the particulars of his claim.

In order to require production of the prescription records, the defendants were required to establish that such documents would prove or disprove a material fact and are relevant.   The court then considered its previous decision in Moukhine v. Collins, 2010 BCSC 621, which held that ""whether a mere allegation in a pleading that a plaintiff's injuries are not the result of an accident, but are caused by his or her pre-accident health condition is enough, without more, to entitle a defendant to production of

pre-accident medical records" (at para 4).  The court noted the discretion it has not to order such production and found the defendants failed to present any material that would suggest a pre-existing condition that would illustrate the relevancy of the pre-accident prescription records. 

The court did go on to note that regarding both the wage loss particulars and the prescription records, more particulars could be presented in a second notice of application which sets out in greater particularity the factual and legal basis for the relief sought as the dismissal in this case was largely based on the inadequacy of material presented.

Regarding the line of credit records, the court held that the defendants were embarking on a fishing expedition for evidence from which an attack can be made on the plaintiff's credibility and such evidence will not be ordered produced as credibility is not a material fact.

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