On May 24th, the Alberta Court of the Queen’s Bench ruled that, in certain circumstances, meaningful disclosure requires the production of native electronic files.

 

Background and Arguments

In Bard v Canadian Natural Resources,[1] the plaintiffs brought a motion requesting, amongst other things, that the court order the defendants to deliver native Excel spreadsheets. The defendant had provided the data in TIFF image files as agreed to by the parties in the discovery plan. The plaintiffs claimed that TIFFs were not a “usable” format.

 

On the contrary, the plaintiffs contended that the TIFFs were “unusable” to prove their claim that the defendants had engaged in financial mismanagement for the following reasons: they were unwieldy (one TIFF was over 1,000 pages); the data contained in the TIFFs could not be manipulated for an accounting analysis; and, the TIFFs did not contain the metadata and formulae from the native files. The plaintiffs also noted that the native Excel spreadsheets contained important information regarding the data and how data in the spreadsheet interacted.

 

In response, the defendants argued that they should not be compelled to produce the native documents as the discovery plan contemplated TIFFs, that producing the Excel spreadsheets would impose disproportionate costs (1,000 hours of work and a cost of $50,000), and that the data for the relevant account was not separate and distinct from the other financial data.

 

Judgement

Citing 2038724 Ontario Ltd v Quizno’s Canada Restaurant Corp,[2] Justice Nixon rejected the claim that the discovery plan barred an order for the production of native files. Justice Nixon also rejected the defendant’s arguments that the order would be disproportionate and would result in the inclusion of non-relevant financial data.

 

Although Justice Nixon did not find that the TIFF files were completely “unusable”, she ruled that they were clearly “less usable” than native Excel spreadsheets. According to Nixon J:

 

production in a format other than the one in which they were originally created does not give [the plaintiffs] meaningful access to what are otherwise relevant, material records.

 

While the decision does not provide a clear rule as to when meaningful disclosure will require the production of native files, Justice Nixon notes that courts must adopt a pragmatic approach when determining what constitutes meaningful disclosure in each individual case. Justice Nixon concluded that meaningful disclosure in this case required the ability to manipulate electronic data.

 

What is a “Usable” Format?

As a final note, the decision contains an insightful discussion of “usability” as it relates to electronic data:

 

Usability is as much a concern for a litigant as it is for the Court. Producing records in an unusable format undermines procedural fairness and just results. It does not help to narrow the issues in dispute, and not only impairs the plaintiff’s ability to prove its case, but also threatens the Court’s ability to understand the evidence put before it. Thus, there is value in producing the spreadsheets in native format.

 

Parties must consider the “usability” of the data being produced, and cannot rely on the terms of a discovery plan which contemplates that images be exchanged if the images are not usable.

 

[1] Bard v Canadian Natural Resources, 2016 ABQB 267 (CanLII)

[2] 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp., 2012 ONSC 6549 (CanLII)

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