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Who Pays to Screen Computers for Privilege?

January 10, 2019

Nova Scotia court decides deceased lawyer’s estate should fund discovery referee

In Medjuck v. Medjuck, Justice Peter Rosinski of the Nova Scotia Supreme Court dealt with a discovery motion that arose out of civil litigation among members of a family, in which one brother (Harold) was suing two of his brothers, one of whom (Franklyn) was a deceased lawyer. Lawyer G, who was representing the living defendant brother and the Executrix of Franklyn’s estate as to Franklyn’s individual capacity, had come into possession of two computers which were reasonably thought to have been used by Franklyn for his legal work. He had put them aside and not reviewed their contents because he suspected there was privileged information on them. The plaintiff was of the view that the contents of the two computers needed to be reviewed because it was quite likely that documents and other information potentially relevant to the civil claim was on the hard drives. This was uncontroversial since, as Justice Rosinski noted, the Nova Scotia Civil Procedure Rulescompelled the disclosure of relevant and non-privileged documents, and Rule 16 in particular mandated the disclosure of electronic data. Previous case law had established that disclosure of a hard drive for forensic analysis fell squarely into this discovery regime. It was also uncontroversial that, because it was likely that privileged information was on the computers, an independent referee should be appointed to review the computers and screen them for anything privileged. In fact, the parties agreed on the individual who should be appointed referee.

The contentious issue on the motion was determining who was to pay for the services of the referee. Lawyer G, as well as lawyer R who was representing the estate as regarded Franklyn’s work as a lawyer, argued that the Estate should not have to pay any of the cost for the referee, and that the plaintiff brother should have to pay at least 50% of the cost. The need to appoint the referee, it was argued, was the responsibility of the plaintiff, who created the uncomfortable situation of potentially privileged materials having to be reviewed and the deceased’s personal representative being unable to do it; moreover, were Franklyn still alive, he would not be able to do this himself because he would be a party and thus in a conflict of interest. However, Justice Rosinski rejected these arguments, noting that the necessity for protecting the privilege of Franklyn’s former clients via his computer had been created by Franklyn himself, while he was still alive, and it was up to the estate to address it now.

In the end, while there was little in the way of relevant precedent, a solution had to be crafted to deal with the privileged material, since it was reasonable for all parties to think that there was material relevant to their cases on the hard drives. The equities of the situation led the court to the conclusion that the Estate should bear the cost of the referee, 50% being allocated to each of the personal aspect and business aspect of the estate.

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