On September 11th, the Ontario Superior Court of Justice ordered the production of a forensic image of a hard drive. Although not clear on the face of the endorsement, this appears to be an order for the production of a departed employee’s former work hard drive.
The Court saw the production order as an efficient means of producing accessible metadata and noted there was no evidence that the production order would lead to the disclosure of confidential or privileged information:
The cost of redacting the non-relevant documents and associated metadata is expensive and time consuming and it is efficient and cost effective to simply reproduce the entire hard drive in its original form. Rule 1.04(1) of the Rules requires the court to liberally construe the Rules to secure the just, most expeditious and least expensive determination of the proceeding on its merits. There is no evidence to suggest that the non-relevant documents are sensitive, confidential or prejudicial in any way such that Hummingbird might be entitled to some form of protection or to warrant the ordering of the redaction, which is a costly exercise.
The Court also presumed (based on the plaintiff’s prior production of paper records from the hard drive) that production of the hard drive itself would produce additional relevant metadata:
While there was no evidence as to the precise nature of metadata, it seems to me that metadata is “data and information in electronic form”. Hummingbird has determined that certain of the documents located on the hard drive and certain of the metadata was relevant. In my view, once Hummingbird has determined that a particular document is relevant, the metadata in relation to such document should be produced. In my view, the metadata is akin to a “time/;date stamp” affixed to a letter or the “fax header” that indicated the time/date of faxing and receipt.
As the Court noted, it made its order without the benefit of affidavit evidence from either party and without the benefit of hearing submissions on any case law on the proper scope of production of records in electronic form.
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