A unanimous decision by the Nova Scotia Court of Appeal provides
timely consideration of the scope of disclosure through Nova Scotia
Civil Procedure Rule 16. In Laushway v Messervey, 2014
NSCA 7 ("Laushway"), Justice Saunders upheld a decision
ordering production of metadata in the circumstances of a
self-employed plaintiff who asserted that his work capacity (i.e.
time spent on his personal computer conducting sales) was reduced
due to personal injuries sustained in a motor vehicle accident.
While this decision specifically considered the Nova Scotia Rules,
the factors outlined by Saunders J. may prove influential as other
jurisdictions address similar requests for electronic
The appellant, who is a self-employed businessperson, claimed
that after the accident he was unable to sit for long periods and
that the time spent at his personal computer had been reduced daily
from 12-15 hours to 2-3 hours. As a result, the suit against the
respondents contained a considerable claim for income loss. The
question was whether metadata should be produced, which is
information about other electronic data, and disclosure was sought
because it could be used to establish the appellant's pattern
of usage on his computer over time. The decision favoured the
respondents, who were represented by Stewart McKelvey's
Patricia Mitchell, and is of significance because it outlined a
general framework to consider where a party seeks production of
As this was a case of first instance Justice Saunders compiled a
non-exhaustive list of factors to take into account when weighing
production in similar circumstances:
Connection: What is the nature of the claim
and how do the issues and circumstances relate to the information
sought to be produced?
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;
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.
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)?
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?
Alternative Measures: Are there other, less
intrusive means available to the applicant, to obtain the
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?
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?
Objectivity: Will the proposed analysis of the
information be conducted by an independent and duly qualified third
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?
Despite concerns about opening the floodgates in future cases,
the NSCA found that the metadata was essential in this case given
that the litigant had put income loss squarely at issue and that
there were no alternative records available to verify his work
hours because he was self-employed. Furthermore, the
respondents' reliance on a reputable litigation support
business which was retained to conduct the forensic assessment of
the metadata reassured the Court that the scope of disclosure would
be appropriate. In this case, the Court balanced the need to
disclose relevant information with privacy concerns of the
information's owner, and in so doing providing valuable
precedent for those litigants seeking relevant metadata in the
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.
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