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.

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