Courts Continue to Deny Access to Hard Drives in eDiscovery Disputes

Courts Continue to Deny Access to Hard Drives in eDiscovery Disputes

Vladyslav (Vlad) Strashko



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:


  1. A computer hard drive is the digital equivalent of a filing cabinet or documentary repository;
  2. 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;
  3. 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;
  4. Speculation alone that the party is not disclosing or is deleting relevant information is not sufficient;
  5. If the order is granted, the inspection should be done by an expert;
  6. The data needs to be reviewed or vetted for relevance and privilege; and
  7. The general rule regarding proportionality would also apply and the court will consider all other remedies first.
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