Canada: Like It Or Not – NS Courts Decide On Production Of Electronic Information

Last Updated: October 1 2014
Article by Brian Perry and Ian Dunbar

On January 28, 2014 the NS Court of Appeal and Supreme Court each released separate but complementary decisions dealing with the production of "electronic information" – including Facebook content – in a personal injury claim. Together, they offer a helpful framework when seeking production of electronic information: 

  • Electronic Information Production Framework. The Court of Appeal laid out a helpful framework for courts and parties to use in requests to produce "electronic information" – like "Facebook" content – that will probably be relevant in other Provinces. 
  • Relevance – and evidence of it – is paramount. Relevance of the information sought – even when it's electronic – is still paramount. A party seeking production will need strong, clear and cogent evidence of that relevance. In the past, some courts have ordered production of completely private Facebook content by inferring its relevance – but these decisions support the view that more than an inference will be required for a production order in the future.
  • So is Privacy. Both decisions reflect the courts' greater willingness to order production of usage records than private content based on reduced privacy interests – and emphasize a litigant doesn't grant a licence to unnecessarily delve into every aspect of her private life simply by claiming the damages the law allows.

Motions for production of electronic information can be expensive, time consuming and "salt the earth". Before forging ahead, carefully consider whether there's really anything to be gained by obtaining a plaintiff's private electronic information – or if the public information is enough. 


In Lauschway v. Messervey, Mr. Lauschway was self-employed selling health products over the Internet before he was injured in an MVA. He made a large claim for income loss on the basis his ability to sit at his computer was significantly reduced. The NS Court of Appeal granted Mr. Messervey's request for production of metadata from Mr. Lauschway's hard drive to conduct a forensic analysis of his computer usage:

Three-Step Analysis.  The NS Court of Appeal took the opportunity to establish a framework to assess requests for production of "electronic information":

1. "Electronic Information". The "metadata" on any computer hard drive is "electronic information" as defined in the NS Civil Procedure Rules – and subject to production under them.

2. Relevance. Mr. Lauschway put his computer use "squarely" in issue: there was a clear, direct link between his time at his computer and his income – and since he worked alone there was no other way to verify his claims. The evidence satisfied the "trial relevancy" test for production in the NS Rules and Mr. Messervey should have the information to test Mr. Lauschway's income loss claim.

3. Burden of Proof & Privacy. If the electronic information is relevant, it is presumed it should be produced under NS Rule 14.08 unless the responding party rebuts the presumption. Mr. Lauschway argued that his reasonable expectation of privacy precluded production. The Court had to exercise its discretion – and decided the production order's terms adequately protected Mr. Lauschway's privacy interests while allowing Mr. Messervey to fairly defend the claim.

"Top 10" Inquiry. The Court offered ten factors a judge assessing a motion for production of "electronic information" may consider, including reliability, proportionality, privacy and availability of alternative measures or sources of information – all balanced by the court's responsibility to ensure effective time and resource management.

Clear & Cogent Evidence.  The evidence of relevance was clear and cogent: the extensive evidence included several detailed solicitors' affidavits referencing correspondence among counsel, discovery testimony extracts, Mr. Lauschway's evidence describing his computer usage, and two expert opinions about the proposed forensic analysis – and Mr. Lauschway and both experts were cross-examined on their affidavits.

Click here to read the NS Court of Appeal's decision in Lauschway v. Messervey, 2014 NSCA 8.


In Conrod v. Caverley, a NS court considered for the first time how 2009 amendments to the NS Rules – and the "trial relevancy" requirement – affect production of a plaintiff's private Facebook information. Conrod was released on the same day, but without the benefit of, the Court of Appeal's Lauschway decision.

Ms. Conrod claimed the injuries she suffered in an MVA drastically changed her social and recreational activities – including her ability to spend time on websites like Facebook. The defendants could access Ms. Conrod's public Facebook profile, but also wanted to see the private "friends only" content. The Court refused to order Ms. Conrod to produce printed copies of the "friends only" content of her Facebook profile – but ordered she produce a printout of her Facebook usage history:

Evidence (Again). The evidence of the relevance of Ms. Conrod's public Facebook account fell short of the "trial relevance" test: the defendants offered nine tiny, grainy photographs from one page of Ms. Conrod's public Facebook account; the Court couldn't tell where or when the photographs were taken or posted – or, in some instances, whether she was even depicted. Since the Court couldn't determine the date of the public photographs, it considered the public content irrelevant to the issue of Ms. Conrod's post-accident functioning.  In turn, the Court refused to infer that the private, "friends only" Facebook content was relevant – and refused to order that she produce it. 

Privacy. Ms. Conrod could easily print her Facebook usage history herself. There was no great intrusion into her privacy when balanced against the defendants' right to fairly defend her claim – and a Facebook usage printout doesn't contain the same scope and breadth of information as that in a hard drive. 

Click here to read the NS Supreme Court's decision in Conrod v. Caverley 2014 NSSC 35.


A party usually wants electronic information to assess or challenge damages and credibility.  But remember – like video surveillance – there's no guarantee a plaintiff's electronic information will contain a "smoking gun". These decisions illustrate that motions for production of electronic information – forgetting the cost to analyse it – can be complicated and expensive. Before jumping into a motion for more, consider whether – and how much – the additional electronic information is likely to benefit your case.  The answer may be it doesn't – or not much; for example, when it's likely to be "more of the same" (another 100 pictures of the plaintiff socializing, for instance).  However, there may be strong evidence only available from electronic sources – like in Lauschway – in which cases courts clearly endorse a production order: 

Electronic Information Production Framework. The Lauschway framework – which seems applicable to all electronic information – is helpful when deciding whether to seek production of electronic information. Its emphasis on "proportionality" and "balance" will likely have an impact even in those Provinces that still apply the more lax "semblance of relevancy" test to production requests. The location and quantity of personal "electronic information" is also rapidly expanding: what about Netflix accounts? Snapchat records? Usage information for the apps on an iPhone? So be careful: the electronic information sought must satisfy the applicable Rules' definition of "electronic information" (or "electronic document"). The Lauschway framework recognizes the legitimacy of a claimant's privacy interest in this information – but also supports production of a wide variety of electronic information, depending on the particular facts.

Relevance – and Evidence of It – Still Paramount. Relevance of the information sought – even when it's electronic – is still paramount. The 2009 change in the NS Rules for pre-trial document production from the "semblance of relevancy" test to the more stringent "trial relevancy" test is important in both decisions. A party seeking production needs strong, clear and cogent evidence of relevance – and should consider whether its evidence will, objectively, meet the threshold. Facebook production orders are becoming more common. In the past, courts in some provinces have simply inferred that, due to Facebook's social nature, a completely private Facebook profile will contain some content relevant to a claimant's post accident functioning– but the Conrod and Lauschway decisions support the view that going forward, the court will require more than this simple inference for a production order.

So Is Privacy. Not all "electronic information" is equal – at least in terms of production. Courts generally seem more willing to order a party to produce usage records than content like photographs or private Facebook messages, based on (arguably) reduced privacy interests. For example, courts have ordered production of computer meta-data, hard drives or records from Internet service providers to ascertain how often or long someone is on-line or her capability to performing sedentary work. Lauschway and Conrod seem to follow that trend – and emphasize that courts won't accept that a litigant grants  a defendant licence to delve into aspects of her private life that don't require it to properly dispose of the litigation by merely claiming the damages the law allows. Rather, courts will carefully scrutinize the evidence and terms of any proposed order, before determining whether an order is warranted. 

McInnes Cooper prepared this article for information; it is not legal advice. Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2014. All rights reserved.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.