NSCA addresses relevance, prorportionality and privacy in the ordering of forensic hard drive reviews

4 Feb

On January 28th, the Nova Scotia Court of Appeal affirmed an order that required a plaintiff to produce a hard drive for forensic review because it contained data relevant to his lost income claim (i.e., the amount of time he spent working at a home office each day).

The Court held that the data was relevant and therefore producible subject to rebuttal by the plaintiff. It set out the following list of factors for Nova Scotia judges to consider in deciding whether or not to grant production in similar cases:

1. Connection: What is the nature of the claim and how do the issues and circumstances relate to the information sought to be produced?

2. Proximity: How close is the connection between the sought-after information, and the matters that are in dispute? Demonstrating that there is a close connection would weigh in favour of its compelled disclosure; whereas a distant connection would weigh against its forced production;

3. Discoverability: What are the prospects that the sought-after information will be discoverable in the ordered search? A reasonable prospect or chance that it can be discovered will weigh in favour of its compelled disclosure.

4. Reliability: What are the prospects that if the sought-after information is discovered, the data will be reliable (for example, has not been adulterated by other unidentified non-party users)?

5. Proportionality: Will the anticipated time and expense required to discover the sought-after information be reasonable having regard to the importance of the sought-after information to the issues in dispute?

6. Alternative Measures: Are there other, less intrusive means available to the applicant, to obtain the sought-after information?

7. Privacy: What safeguards have been put in place to ensure that the legitimate privacy interests of anyone affected by the sought-after order will be protected?

8. Balancing: What is the result when one weighs the privacy interests of the individual; the public interest in the search for truth; fairness to the litigants who have engaged the court’s process; and the court’s responsibility to ensure effective management of time and resources?

9. Objectivity: Will the proposed analysis of the information be conducted by an independent and duly qualified third party expert?

10. Limits: What terms and conditions ought to be contained in the production order to achieve the object of the Rules which is to ensure the just, speedy and inexpensive determination of every proceeding?

The Court also suggested that, although “the semblance of relevance” test for production has been abolished under the Nova Scotia Rules, in gleaning what might ultimately be relevant at trial, “it is better to err on the side of requiring disclosure of material that, with the benefit of hindsight, is determined to be irrelevant rather than refusing disclosure of material that subsequently appears to have been relevant.”

Laushway v Messervey, 2014 NSCA 7 (CanLII)

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