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Sensible Documentary Discovery

September 13, 2019

Judge invokes proportionality, efficiency, common sense in wide-ranging electronic discovery motion

In Natural Trade Ltd. v. MYL Ltd., Justice Marchand of the British Columbia Supreme Court heard a set of discovery motions in a hotly-contested action, in which a set of companies alleged that confidential information and customer lists had been misappropriated from the companies by a former employee, who conspired with others to use this information to compete with the plaintiff companies. The plaintiffs sought disclosure of various records, including electronic communications and metadata, while the defendants sought similar materials in a counter-motion.

The discovery demands were numerous and the resulting order was so long it had to be appended to the judgment as a separate document. Of interest was Marchand J.’s review of the general principles underpinning discovery, in particular proportionality and efficiency. He also provided a tidy capsule summary of electronic discovery principles, and an application of them to cloud storage facilities:

[34]        The word “document” is defined broadly in Rule 1-1 to include “a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.” While a computer hard drive is typically considered to be a receptacle for the storage of documents akin to a filing cabinet, in certain circumstances the hard drive itself may be a “document” subject to production: Chadwick v. Canada (Attorney General)2008 BCSC 851 (CanLII) at paras. 17-22.

[35]        In Sonepar Canada Inc. v. Thompson2016 BCSC 1195 (CanLII), Pearlman J. dealt with an application for the defendants to disclose electronic documents, including metadata. The case involved allegations that the defendants, including former employees of the plaintiff, conspired to misappropriate the plaintiff’s confidential pricing information and unlawfully interfere with the plaintiff’s contractual relations. At para. 46, Pearlman J. summarized the principles applicable to the production of electronic documents from a computer hard drive or other electronic devices as follows:

  1. A computer hard drive is the digital equivalent of a filing cabinet or documentary repository. While the court may order the production of relevant documents stored on the hard drive, Rule 71 does not authorize the court to permit the requesting party to embark upon an unrestricted search of the hard drive.
  2. A computer hard drive as a document storage facility is generally not producible in specie. A hard drive will often contain large amounts of information that is irrelevant to the matters in issue in the litigation, including information that is private and confidential and that ought not to be produced.
  3. In exceptional circumstances where there is evidence that a party is intentionally deleting relevant and material information, or is otherwise deliberately thwarting the discovery process, the court may order the production of the entire hard drive for inspection by an expert. There must be strong evidence, rather than mere speculation, that one party is not disclosing or is deleting relevant information in order to justify such an order.
  4. On an application for production of electronic records from a computer hard drive, the court must balance the objective of proper disclosure with the targeted party's privacy rights.
  5. Proportionality is a factor for the court to consider in determining the scope of the search parameters.
  6. Metadata consisting of information stored on the software which shows the use of the computer, such as dates when a file was opened, last accessed, or sent to another device, is information recorded or stored by means of a device and is therefore a document within the meaning of the Rules.
  7. As a general rule, the producing party's counsel should have the first opportunity to vet for relevance and privilege any information produced from the hard drive or from any other source of electronic data containing private information unrelated to the lawsuit.
  8. To that, I would add that there may be circumstances where it will be appropriate to depart from the general rule, for example, where there is evidence that the producing party has deliberately destroyed records or is likely to interfere with or thwart the production of relevant information.

[Citations omitted.]

[36]        The plaintiffs submit that the same principles applicable to the production of a computer hard drive also apply to a cloud-based document repository. While the plaintiffs have cited no authority related to “the cloud”, I can see no principled reason to disagree. The cloud is just another place where parties may store their documents. The use of the cloud should not enable parties to shelter relevant documents from production.

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