Case Report – Court says there’s no right to forensic inspection absent evidence of non-disclosure or omission

On January 19th, Master Sproat of the Ontario Superior Court of Justice held that a plaintiff had provided no basis for an order permitting the forensic inspection of two hard drives. In doing so, he made the following general comment on forensic inspections as a matter of right:

Related to this point was a submission that a party was entitled, as of right, to a forensic obligation of a computer or, alternatively, that because this action involved allegations of political conspiracy, the plaintiff had a stronger entitlement to the relief sought. In my view, there is no entitlement as of right to the investigation sought by the plaintiff absent some evidence of non disclosure or omission and upon a proper consideration of the issue of proportionality now required under the new rules. Furthermore, and the nature of this case does not give this plaintiff a better entitlement than other plaintiffs. All litigants have a right to disclosure of relevant documents, regardless of the nature of the case. I do accept that electronic discovery may have a greater role or be of greater importance in certain cases over others depending on the allegations in the action (for example, if there is a dispute concerning when a key document was prepared), but this is not such a case so far as this court can discern.

The Court also dismissed a request for an order requiring the defendant municipality to conduct a second search for records in the absence of any evidence that its first search was flawed.

Rossi v. Vaughan (City), 2010 ONSC 214 (CanLII).

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