Associate
September 28, 2021
Earlier this year, two Canadian court decisions came out that considered the same issue: what is required in order to obtain an order requiring production of hard drives and electronic devices.
The first case, Ceballos v. Aviva Insurance et al., 2021 ONSC 4695 (CanLII) came from Ontario. The second case K.K.R. v J.S.R., 2021 BCSC 104 (CanLII) is from British Columbia. While these decisions came from two different provinces, both courts applied consistent legal approaches and analyses:
- A computer hard drive is the digital equivalent of a filing cabinet or documentary repository;
- The production of the hard drive or filing cabinet is very intrusive as it contains a lot of irrelevant data that may be private and confidential;
- The order may be given only in exceptional circumstances where there is evidence that a party is intentionally deleting relevant and material information, or is otherwise deliberately thwarting the discovery process;
- Speculation alone that the party is not disclosing or is deleting relevant information is not sufficient;
- If the order is granted, the inspection should be done by an expert;
- The data needs to be reviewed or vetted for relevance and privilege; and
- The general rule regarding proportionality would also apply and the court will consider all other remedies first.
In Ceballos v. Aviva Insurance et al., the court denied a motion seeking production of, or access to, the hard drives of the computers of three corporate defendants. In its reasoning, the court pointed out that the alleged inconsistencies in what the Plaintiff was told by various employees of the defendants in the past, and the mere belief that some documents may have not been disclosed are not sufficient bases to order inspection of the hard drives. However, for one corporate defendant, the court ordered it to produce an event log including all communications contained therein that were not yet produced as well as an order requiring it to amend the affidavit of documents to include more detailed information.
In K.K.R. v J.S.R., the court denied an application seeking production of, or access to, the electronic devices because, while there were some unusual circumstances in the case, there was no evidence that the other side had intentionally deleted relevant and material information, or otherwise deliberately thwarted the discovery process. The court also noted that permitting a search of electronic devices is an exceptional measure to ensure the integrity of the document disclosure process, and not a tool to enable a party to secure evidence on a particular issue. However, the court did find some shortcomings in the disclosure process and left it open for the moving party to request and seek the “second-tier” document disclosure permitted by British Columbia rules. This would be done by filing an application to have the opposing party provide an affidavit verifying the most current list of documents if there was still a concern about the completeness of the current production.
These two decisions are also in line with an earlier decision by the Court of Appeal of Alberta in Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII), where the Court of Appeal overruled the decision by the case management judge to order the production of the imaged hard drive. The Court of Appeal summarized its decision as follows: “In exceptional circumstances, a court can order production of a hard drive for examination by an expert, on appropriate terms, but only where evidence establishes that a party is intentionally deleting relevant and material information or otherwise deliberately thwarting the discovery process. Even in such a case, the applying party is only entitled to relevant and material information and it is the duty of the judge to protect irrelevant, confidential and private material.”
In the US, a recent decision denying a motion to inspect the computer hard drives in Equal Employment Opportunity Commission v. M1 5100 Corp., (S.D. Fla. July 2, 2020), also pointed out that (a) inspection of an opposing party’s computer system under the Federal Rules of Procedure and state equivalents is the exception and not the rule for discovery of electronic documents and (b) protective orders should be in place to guard against any release of proprietary, confidential, or personal identifiable documents. The court ruled that inspection of the hard drives and other electronic devices may be permitted only in exceptional circumstances when all other reasonable solutions have been exhausted or when the court suspects bad faith or other discovery misconduct.
Accordingly, before seeking production or examination of the hard drives or other electronic devices, it is critical for the moving party to make sure it has enough evidence to show exceptional circumstances and that the opposite party is intentionally deleting relevant and material information or is otherwise deliberately thwarting the discovery process. In addition, all other remedies should also be considered and exhausted first, leaving no other alternative options but to request the production or examination of the hard drives or other electronic devices.
Vladyslav (Vlad) Strashko is an Associate at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence. Heuristica has considerable experience in investigations and disputes and recently became the first law firm in the world to be awarded RelativityOne Silver Partner status.
