Canada: The Production Of Private – But Relevant – Electronic Information In Civil Litigation: The NSCA Weighs In

In Laushway v. Messervey, the Nova Scotia Court of Appeal recently established a framework to be applied when a litigant seeks production of electronic information found on an opposing party's computer.  The decision, which was mentioned in an earlier post, recognizes that electronic information may be both directly relevant and also very private, and that courts will increasingly be called upon to address this issue.  Although the decision is grounded in Nova Scotia's procedural rules, the framework established by the Court of Appeal will likely be influential across the country.

Background and the Decision Below

Mr. Laushway, the plaintiff, is a self-employed businessman who has been selling health products over the Internet since 2000.  In December 2005, he was injured in a motor vehicle accident.  He claims that, as a result of the accident, he could only sit at his computer for short periods and therefore could not devote as much time as previously to his business and that this resulted in a considerable financial loss.

The defendant sought disclosure of Mr. Laushway's computer hard drive so that a metadata analysis could be conducted to determine the usage patterns.  "Metadata" is data that provides information about other data.  Examples of metadata include the creation date and authorship of electronic documents.  The defendant proposed to use a company with litigation support expertise in forensic assessment to conduct the analysis.  Mr. Laushway resisted the disclosure request on the basis that it was overly intrusive, raised privacy concerns, and would yield little useful information.

Robertson J., the chambers judge, granted the defendant's request.  Robertson J. concluded that the metadata is relevant, as it directly relates to the amounts of time that Mr. Laushway spent on his computer, and thus to the general damages and income loss components of his claim.  Robertson J. was also satisfied that the litigation support company would adequately protect Mr. Laushway's privacy interests.  Finally, Robertson J. observed that proportionality was not a concern, given that the defendant had agreed to cover the costs of the investigation.

The Decision of the Nova Scotia Court of Appeal

On behalf of a unanimous Nova Scotia Court of Appeal, Saunders J.A. dismissed Mr. Laushway's appeal.

Saunders J.A. began by observing that the case was one of first instance, as the issues had not previously been considered by the Court of Appeal.  Saunders J.A. framed the over-arching question to be determined as follows:

"... how does one balance, and when necessary establish, a hierarchy between legitimate privacy interests on the one hand and fairness to litigants in the search for truth on the other?"  (para. 2)

Under Nova Scotia's procedural rules, a judge has the discretion to order the disclosure of relevant electronic information or to provide access to an original source of relevant electronic information.

Saunders J.A. stated that it is "almost self-evident" that the metadata found on the hard drive of any computer constitutes "electronic information."  (para. 41)  Saunders J.A. also agreed with Robertson J. that the metadata is relevant in this case.  Saunders J.A. downplayed the concern that ordering the disclosure of Mr. Laushway's hard drive would "open the floodgates" to similar production requests in other cases.  In particular, Saunders J.A. noted that Mr. Laushway is self-employed and works at home by himself, with no boss, co-worker, or other physical record to verify what he is doing.  On these facts, and in light of the nature of the claim, Saunders J.A. viewed the metadata as directly relevant:

"The plaintiff has put his computer use squarely in issue.  That is how he earns his income and he blames the defendants for causing that significant financial loss.  Based on the circumstances in this case there is a clear, direct link between the hours Mr. Laushway says he spent at his computer, and his income as a salesman selling health products on line. That is what makes this information relevant."  (para. 57)

Finally, Saunders J.A. turned to the presumption established by Nova Scotia's procedural rules, which is that the disclosure of relevant documents and electronic information is presumptively necessary, unless the party resisting the disclosure rebuts the presumption.  Saunders J.A. acknowledged that Mr. Laushway has privacy interests in his personal computer.  Saunders J.A. was, however, satisfied that the proposed forensic assessment would adequately protect Mr. Laushway's privacy interests.  Notably, the litigation support company provided evidence that it would be able to assess the usage of Mr. Laushway's computer without viewing the content of files or emails and without viewing the specific websites that he visited.

Perhaps most significantly, Saunders J.A. concluded by providing (at para. 86) a list of ten factors for judges to consider when deciding whether to grant production orders in cases such as this.  These factors are:

1.  Connection: What is the nature of the claim and how do the issues and circumstances relate to the information sought to be produced?

2. Proximity:  How close is the connection between the sought-after information, and the matters that are in dispute?  Demonstrating that there is a close connection would weigh in favour of its compelled disclosure; whereas a distant connection would weigh against its forced production.

3. Discoverability: What are the prospects that the sought-after information will be discoverable in the ordered search?  A reasonable prospect or chance that it can be discovered will weigh in favour of its compelled disclosure.

4.  Reliability:  What are the prospects that if the sought-after information is discovered, the data will be reliable (for example, has not been adulterated by other unidentified non-party users)?

5.  Proportionality:  Will the anticipated time and expense required to discover the sought-after information be reasonable having regard to the importance of the sought-after information to the issues in dispute?

6.  Alternative Measures:  Are there other, less intrusive means available to the applicant to obtain the sought-after information?

7. Privacy:  What safeguards have been put in place to ensure that the legitimate privacy interests of anyone affected by the sought-after order will be protected?

8.  Balancing:  What is the result when one weighs the privacy interests of the individual; the public interest in the search for truth; fairness to the litigants who have engaged the court's process; and the court's responsibility to ensure effective management of time and resources?

9. Objectivity:  Will the proposed analysis of the information be conducted by an independent and duly qualified third party expert?

10.  Limits: What terms and conditions ought to be contained in the production order to achieve the object of the Rules which is to ensure the just, speedy and inexpensive determination of every proceeding?

Saunders J.A. noted that this list is not exhaustive and can be refined and improved over time.

Potential Significance

The decision of the Nova Scotia Court of Appeal addresses an issue that will likely become increasingly important in the years ahead, as litigants seek access to electronic information in which there are significant privacy interests.  In its decision, the Court of Appeal recognized that the electronic information must first be relevant, and that it may not be relevant in many cases.  Saunders J.A. suggested, for example, that electronic information may not be relevant in a personal injury case in which there is no loss of income claim that hinges on the plaintiff's computer use:

"... we are not concerned with a lawsuit brought by a construction worker who claims that as a result of a slip and fall at a jobsite, he has been left with a partially disabled wrist which prevents him from enjoying his computer as he once did.  In that example the complaint would relate to the plaintiff's functionality at the keyboard which would have little to do with the plaintiff's claim for loss of income based on the worker's interrupted wages while laid off."  (para. 53)

Once relevance has been established, the Court of Appeal's decision indicates that the focus then turns to whether and how the privacy interests can be protected.  In Laushway v. Messervey, the fact that a reputable litigation support company was retained to conduct the forensic assessment, and provided evidence explaining how this would be done, gave comfort to the Robertson J. and to the Court of Appeal in ordering the disclosure.  Although the decision of the Court of Appeal is grounded in Nova Scotia's procedural rules, the Court of Appeal's list of ten factors will likely be cited in future cases across the country and provides a useful framework for parties seeking and resisting disclosure of electronic information.

Case Information

Laushway v. Messervey, 2014 NSCA 7

Docket:  CA 412677

Date of Decision: January 28, 2014

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions