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In Laushway v. Messervey, 2014 NSCA 7, the Nova Scotia Court of Appeal considered the case of a bashful plaintiff appealing a production order requiring him to produce his hard drives for metadata examination by the defendant.

The plaintiff, in this case, had argued that injuries he suffered at the hands of the defendant required him to cut back the hours he spent on his computer, from twelve to fifteen hours per day, to less than three hours. He argued he’d suffered lost income as a result.

The defendant sought production of his hard drives so it could examine the metadata to confirm his claims. The trial judge granted the order and the plaintiff appealed.

The Preconditions for Metadata Production

The Nova Scotia Court of Appeal ultimately dismissed the plaintiff’s appeal. In its reasons, the appeal court set out the following three conditions before an order for production of electronic information could be obtained:

1. Has the moving party satisfied the court that the sought-after information is “electronic information” and therefore subject to a production order under the Rules?

2.  If so, has the moving party established that the sought-after information, now properly characterized as electronic information is relevant?

3. If so, the moving party is then entitled to the presumption established by Rule 14.08 such that the responding party must then rebut the presumption in order to defeat the request for a production order.  When considering whether or not the presumption has been rebutted several Rules offer illustrations of the kinds of criteria which might be considered by the judge – see for example, Rule 14.08(3), (6); 14.12(3), (4); and Rule 16.

The Relevant Factors for Metadata Production Orders

The appellate court also set out ten conditions that trial courts should consider when deciding whether or not to grant production orders like this:

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?

Take Care With The Issues You Raise

In addition to the helpful criteria laid out above, the case serves as a helpful reminder for plaintiffs and defendants alike. Both parties need to be careful about the issues they bring into play. Because metadata is so ubiquitous, a party could easily and reasonably make an application for such a production order if presented with an opponent who makes a claim that can be disproved with metadata.

Once the issue has been raised, there is very little in the way of case law to prevent the opposing party from successfully getting an order that has a tremendous impact on your privacy.

About the Author:

Steven Toews

Steven Toews

Steven Towes is a former prosecutor and defense attorney, who now resides with his wife and labradoodle in Bermuda and offers legal and business writing and consulting services. Tweet him @steventoews.

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