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. 

NS COURT OF APPEAL AND "ELECTRONIC INFORMATION"

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.

NS SUPREME COURT AND FACEBOOK USAGE

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.

LOOK TWICE BEFORE YOU LIKE

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.

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