Case Report – Limited forensic inspection allowed

On March 17th, Mr. Justice Perell upheld an order which allowed a plaintiff’s expert to recover and search data from a defendant’s personal computer.

In furthering its $1 million departing employee claim, the plaintiff had proven that the individual defendant used his personal computer for business purposes. It had also produced e-mails it had received from the defendant that the defendant had not produced himself because they had been deleted. The plaintiff claimed the missing e-mails were relevant to whether the defendant breached his non-solicitation duty. In these circumstances, Master Dash ordered an inspection to be be made by way of a search of recovered e-mails based on client names.

Mr. Justice Perell considered the existing jurisprudence and Sedona Canada Principle 2 (on proportionality) and upheld Master Dash’s order. He said:

Returning to the case at bar, in my opinion, the short endorsement reveals that in ordering an inspection of the computer, Master Dash either: (a) concluded that there was evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents; or (b) he balanced a variety of factors to conclude that inspection should be ordered including: the relevance and importance of finding evidence that Mr. Cox had sent e-mails to Vector’s customers; the likelihood that Mr. Cox did send e-mail messages to clients given his admitted use of his personal computer for business purposes; the carefully defined parameters of the inspection; and the plaintiff’s willingness to pay for the costs of the inspection. In my opinion, whether Master Dash did (a) or (b), he applied the law correctly to the circumstances of the case at bar.

Thank you to Peg Duncan for passing this on. Please check out LexUM’s e-Discovery Canada site for its great case law digest and other information related to e-discovery in Canada.

Vector Transportation Services Inc. v. Traffic Tech Inc., 2008 CanLII 11050 (ON S.C.).

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