Case Report – Forensic inspection ordered but party trusted to deal with results

In a oral award issued on July 11th, Mr. Justice Elliot Myers of the BCSC ordered the forensic examination of a computer hard drive, declined to order the appointment of independent counsel and suggested the forensic expert was precluded from communicating the results of his analysis to the parties to whom records were produced.

The hard drive was in the custody of the plaintiffs and involved records relating to a fatal helicopter crash. The parties agreed that it contained relevant records, some of which were deleted prior to litigation and needed to be recovered. This caused the plaintiffs to hire a forensic computer specialist to retrieve and produce records to the defendants, but when the defendants asked for information about the methodology used by the specialist the plaintiffs refused. They claimed that providing the requested explanation would involve a substantial expense and, for whatever the reason, neither the defendants nor the plaintiffs invited the Court to assess or order the obvious mid-ground solution – simply ordering the plaintiffs to provide the information originally requested by the defendants.

In making his order (which entailed having the defendants’ forensic computer specialist administer agreed-upon search terms), Myers J. distinguished between the need for an order to give assurance that a search is done effectively and the need for an order to protect against bad faith conduct.

In ordering an inspection by an expert selected by the defendant’s, he said:

The real issue here is that the defendants cannot verify the quality or the thoroughness of the hard drive search because Mr. Camp has not provided them with the necessary information. Mr. Camp can only rely on the advice of Mr. Kojima that the hard drive analysis was done using the appropriate methodology; he did not presume to have the technical expertise to effectively supervise that exercise. Therefore, the defendants cannot rely on the obligation of counsel to ensure that all relevant documents are listed. The defendants are left with having to accept as a matter of blind faith that Mr. Kojima retrieved all relevant documents. That takes on a particular edge in this case because the former owner of the hard drive, Mr. Honour, is deceased. This is not a case where the owner of the hard drive can be examined for discovery as to the location of documents or discrepancies in the document list.

And declining to order the appointment of independent counsel:

With respect to the first rationale for [the mechanism of appointing independent counsel], there has been no allegation of improper deletion of documents (as opposed to deletion of documents in the ordinary course) or a skirting of the court rules. In that sense this application is not in the nature of an Anton Piller order.

The second rationale for the mechanism — concern with respect to the defendants seeing privileged or irrelevant documents — is a valid one. But this can be met by the forensic expert forwarding the results to Mr. Camp, who would then deal with the retrieved documents in the ordinary course.

Finally, Myers J. held that it was implicit in the order granted that the defendant’s forensic would not communicate the results of his search to the defendants and suggested he would deal with any questions about the validity of the expert’s process if necessary post disclosure.

Chadwick v. Canada (Attorney-General), [2008] B.C.J. No. 1225 (S.C.) (QL).

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