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 disclosure.

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 electronic information.

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:

  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?

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 future.

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.