2006BCSC0955

Before: The Honourable Mr. Justice Myers

Reasons for Judgment

Counsel for the Plaintiff:	R.B. Webster D. Corrin
Counsel for the Defendants:	L.P. Stevens
Date and Place of Trial:	May 8 & 9, 2006
	Vancouver, B.C.

[1] This is a motion by the defendants seeking production of electronic evidence. Although brought under Rules 26, 30, 46(1) and 57, in argument counsel for the defendants relied almost exclusively on Rule 26.

[2] The defendants seek production of the hard drive from the plaintiff’s home computer for analysis by an expert. The defendants also seek production of the plaintiff’s Palm Pilot and video game unit.

[3] Apart from digital photos that might be stored in electronic form, and therefore subsumed within the motion for production of electronic evidence, the defendants also seek production of hard copies of the plaintiff’s photos taken after the accident.

[4] I describe what the plaintiff is seeking, and why, in greater detail in the following section. Before doing so, I set out the background of the motion.

[5] The plaintiff claims damages for personal injury suffered as a result of a collision when she was riding her bicycle.

[6] As a result of the collision the plaintiff claims that she has suffered brain injury, chronic pain and fibromyalgia, overwhelming fatigue, and soft tissue injuries. She alleges impairments in her cognitive abilities including memory, concentration and attention. She also alleges disabling fatigue, low mood, significant pain, changes in her vision and tinnitus. She says that she has disordered sleep.

[7] The plaintiff alleges that as a result of her symptoms she can no longer work at her former job as a systems analyst at Telus. In the last four years she has not attempted to return to work. She relies on medical reports indicating that she is permanently disabled from competitive employment, even on a part time basis. She is only 44 years old and therefore her claim for future income loss will be substantial.

THE GROUNDS FOR SEEKING THE EVIDENCE

[8] The type of information sought from the hard drive can be broadly categorized into three separate categories. The rationale of the defendants for seeking production is different for each.

(a) The first category is the actual document files (including documents that appear deleted) contained on the drive. The defendants seek this information because, they say, the plaintiff may have written to friends describing her condition as better than she has testified to in discoveries. In other words, they hope to obtain admissions against interest.

(b) The second category of information is the metadata relating to computer usage. Each file on a computer has metadata associated with it. This metadata logs information such as the time the file was created, which user was logged on to the system when the file was created, and how long the file was open. The defendants wish to obtain this information in order to enable them to assess the plaintiff’s computer functionality after the accident.

(c) The third category is the history of the web sites the plaintiff has visited. The defendants allege that the plaintiff may be exaggerating her symptoms and level of impairment; she may be representing herself to physicians and other examiners as suffering from a post-traumatic brain injury and psychological trauma, having learned the diagnostic criteria of these from external sources. The defendants want to review the web sites the plaintiff has visited to see whether she may have obtained information on brain injury from those sites.

[9] The ground for seeking the Palm Pilot is different. The plaintiff says that as a result of the accident she requires a Palm Pilot as a memory aid. One of the plaintiff’s experts has factored replacement devices into his cost of future care analysis. The defendants say that the plaintiff’s evidence on her use of the Palm Pilot is different in her discovery from that given in a statement to a medical expert. The defendants seek production of the Palm Pilot in order to determine the extent of its usage by the plaintiff and, therefore, to determine whether she will use one in the future.

[10] The game unit is sought by the defendants for similar reasons as the metadata, namely to show the usage the plaintiff has made of the unit in order to assess her cognitive abilities post-accident.

[11] Finally, the defendants seek production of the hard copies of the plaintiff’s post-accident photos because, they say, they are relevant to showing what quality of life the plaintiff is able to enjoy. In particular, the defendants want to see photos from a vacation which the plaintiff took after the accident.

[12] The mechanics proposed by the defendants for the delivery of the electronic evidence is as follows. The hard drive, game unit and Palm Pilot would be delivered to the defendants' expert, who would prepare reports showing the information being sought. Those reports would be delivered to the plaintiff’s counsel, who would review them for privilege. The reports and data, less anything in respect of which privilege was being claimed, would be disclosed to defence counsel in the form of a supplementary list of documents.

[13] When in the course of argument I raised the concern that the defendants' expert would have access to privileged information before it was reviewed by plaintiff’s counsel, Ms. Stevens, counsel for the defendants, said that she would be content for the electronic evidence to be handled by an expert chosen by the plaintiff. I will therefore base this decision on that premise.

ANALYSIS

[14] Although I analyze each of the elements of the defendants' motion discretely, I cannot help but observe at the outset the breadth of what is being sought when looked at as a whole. The defendants are seeking disclosure of all available information to show virtually every element of the plaintiff’s activities for all her waking hours. In a sense the disclosure would be even more intrusive than that obtained from an electronic monitoring bracelet, which only records physical location.

1. The Hard Drive

(a) The Electronic Documents

[15] The plaintiff says that the hard drive has been examined by her former counsel, and all relevant documents contained on it have been disclosed. Therefore the order being sought would allow the defendants to search through the hard drive, as if it were a filing cabinet, and to make their own assessment as to what is relevant and what is not. The plaintiff also argues that the production of the information sought would violate the privacy rights of her friends, who have access to her computer from time to time.

[16] A similar application was brought in Park v. Mullen, 2005 BCSC 1813. In that case, Dorgan J. referred to the Court of Appeal’s decision in Privest Properties Ltd. v. W. R. Grace & Co. - Conn (1992), 74 B.C.L.R. (2d) 353 (C.A.), where counsel for the plaintiff sought access to a document repository set up by the defendant for the purposes of litigation in the United States because issues in the U.S. litigation and the Canadian litigation overlapped. In that case, after reviewing Rule 26, and the duties imposed by it, Southin J.A. stated:

But these rules do not empower a judge to require a party to give access to his opponent to documents which are neither in his list nor in an affidavit required to be made under sub-rule 4 nor referred to in one of the documents listed in sub-rule 8.

Sub-rule 10 confers no power to make the order under appeal which is really authorization for a search.

If the court had power to make this order then it would also have the power to permit a litigant access to all places in which his opponent might keep documents to see if there is there anything "relating to any matter in question".

It would require much different rules to give the court such an extraordinary invasive power in circumstances such as these. However, if the fact which the respondents at one time wrongly believed to exist - that is to say, a deliberate concealment of documents - was proven to exist, it may be that an order of the sort made here could be made for the purpose of redressing dishonesty in the course of litigation. That issue can be determined if, as and when it arises. (paras. 37-40).

[17] Dorgan J. found that the request for the hard drive was equivalent to what was sought in the Privest Properties case, and denied the defendant’s motion for its production. With the exception of the defendants' argument regarding “deleted” documents (which I discuss below), there are no facts in this case which meaningfully distinguish it from Park. I am bound to follow that decision and also agree with it.

[18] Furthermore, there is no evidence that the files contain statements as to the plaintiff’s condition or health. The files are being sought because admissions may have been made.

[19] Former counsel for the plaintiff visited the plaintiff’s home, examined the documents on her computer, and advised counsel for the defendants that nothing was found. If the documents being sought were hard copies, in the ordinary case that would be the end of the matter. I do not think the fact that the defendants are seeking electronic evidence should make a difference.

[20] It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production. For the purposes of this part of the motion (as opposed to the request for the metadata, which I discuss below) the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party’s filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed.

[21] The foregoing should not be taken to say that hard drives should never be ordered to be produced so that a party may have access to electronic documents. But different rules and principles govern those situations, such as those pertaining to the requirements of obtaining an Anton Piller order.

[22] The aspect of the defendants' argument not addressed by Privest Properties and Park is the claim that turning the hard drive over to a computer expert will enable the retrieval of deleted documents. In this regard, the analogy to a filing cabinet is less apt, as only electronic storage devices retain a document’s data after it appears it has been “deleted”.

[23] There is no allegation that the plaintiff deleted files (i.e., documents) from her computer with an improper motive or purpose. Rather, any deletions were made in the ordinary course. The deleted files are being sought for the same rationale as the files which were not deleted, namely that they might contain possible admissions against interest. As I stated above, the existence of files that contain such admissions is speculative with respect to the documents which have not been deleted. It is more so with respect to deleted files. I do not think that the defendants should be given access to the plaintiff’s hard drive under these circumstances.

[24] In addition to what I have outlined in this section, I also rely on my reasoning in the following section regarding the metadata at para. 40.

[25] Accordingly, this part of the motion is dismissed.

(b) The Metadata

[26] The request for the metadata stands in a different light. In applying for the metadata, it is not the contents of the documents that the defendants are seeking, rather it is information which shows the use to which the plaintiff puts her computer. The defendants wish to obtain this information in order to enable them to assess the plaintiff’s computer functionality after the accident. This is not, therefore, a situation where there exists a repository of documents some of which might be relevant and some not, to which a party wants to gain access. At the level of the metadata, if the defendants are correct, all of the recorded information would be relevant. This issue therefore requires separate analysis from the preceding one.

[27] The first question to be addressed is whether the metadata is a document. The plaintiff does not appear to take issue with the defendants' position that the metadata is a document.

[28] The definition of document in the Rules of Court is given an expansive meaning by Rule 1(8), which states:

'document' has an extended meaning and includes 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.

[29] The information being sought does not fit the ordinary or intuitive concept of a document, electronic or otherwise. What is being sought by the defendants is a report of recorded data (i.e., the metadata) that is generated by computer software. That data is not something created by the user, but it is based on what the user does with her software. It is not something that has content in the same sense as a document file generated by the user, for example, a word processing document or spreadsheet. Nor is it something which is printed out or emailed in the ordinary course. The assistance of an expert is required to generate the metadata report. In spite of this, it appears clear that the metadata is “information recorded or stored by means of [a] device” and is therefore a document under Rule 1(8).

[30] Should the metadata be produced? Once again, Park is instructive. While the term “metadata” was not used in the Judgment, the motion in Park appears to have been cast in nearly identical terms to the case at bar. The defendants in that case applied under Rule 26 for, among other things, the production of records of the frequency and duration of computer use.

[31] Dorgan J. refused to order production of the data, finding it had limited, if any, probative value. She stated:

I am satisfied that the defendant's request is entirely too broad. The application is based on the premise that there is some way to delve into a multi-user computer and extract from it information relevant to an issue at trial. The defendant offers no plausible evidence or submission relating to how such evidence might be used or interpreted by the triers of fact. I fail to see how the types of documents requested would provide any measure, let alone an objective measure, of the plaintiff's cognitive functioning. Evidence which goes to the plaintiff's level of cognitive functioning may be gained by an assessment of the plaintiff by those who are expert in the field, or by the examination at trial of witnesses, including the plaintiff. The types of documents the defendant seeks would, in my view, have little if any probative value in that context. I simply do not see how the types of documents sought would help the defendant advance his case or destroy the plaintiff's case. (Para. 22).

[32] While the defendants acknowledge that Park is a case very similar to the one at bar, they say the above reasoning is distinguishable because of the evidence from their computer expert filed in this motion. The defendants' computer expert provided evidence of what information can be collected from a hard drive and how it can be collected. But he did not, nor could he, attest to the probative value of that information (the plaintiff’s usage patterns and daily time spent on the computer), to an assessment of the plaintiff’s sleep patterns, level of functioning and ability to use a computer or her ability to focus, concentrate, reason, manipulate images and data, and stay on task. That could only be attested to by a medical or other appropriate expert. The medical experts for both the plaintiff and defendants include a psychiatrist, occupational therapist, psychologist and neurologist. None of them suggested in their reports that the plaintiff’s computer metadata would assist in assessing her cognitive functioning or ability to work, nor did they swear an affidavit to that effect.

[33] The defendants say that no such medical evidence is needed. Ms. Stevens submitted that it is clear that the information would be of assistance to cross-examining the plaintiff on her use of the computer and that it therefore meets the test of relevance for the purposes of discovery. But that begs the same question as dealt with in the prior paragraph, namely the probative value of such questioning. Once again, in the absence of further expert evidence, I cannot find that such questioning would be relevant. For example, it is not at all apparent to me how a series of questions as to how long particular computer files may have been open on the plaintiff’s computer would assist in elucidating the issue of cognitive ability or ability to work on a computer. This is in part because – as was attested to by the plaintiff’s expert - how long a file was opened may bear no relation to how much work was done on it during the time it was opened: the plaintiff could have had a file open and left it open to do other things.

[34] Accordingly I find that the defendants have not demonstrated that the metadata is relevant.

[35] That is sufficient to dismiss this portion of the motion, but even if I were able to find that the metadata had some marginal probative value I would reach the same result. It is true that the test of relevance for the purposes of discovery is extremely broad. Nevertheless the Courts have used common sense in determining the permissible scope of discovery. In Peter Kiewit Sons Co. of Canada Ltd. v. British Columbia Hydro & Power Authority (1982), 36 B.C.L.R. 58 (S.C.), McEachern C.J. held that Rule 26 should not be slavishly applied in a case of major litigation. There, although the defendant had already furnished some 30,000 documents for inspection, the plaintiff sought an additional order for production of documents relating to the defendant’s other contracts. McEachern C.J. acknowledged that on a literal reading of Rule 26(1) and the application of The Compagnie Financiere et. Commerciale du Pacifique v. The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.), the plaintiff would succeed. However, he went on to state at para. 22 to 23:

I respectfully decline to follow the Peruvian Guano case, supra, or slavishly to apply R. 26(1) in a case such as this, where thousands or possibly hundreds of thousands of documents of only possible relevance are in question. I do not intend to suggest, however, that the Peruvian Guano case does not correctly state the law in most cases. That question does not arise for consideration here.

It does not follow that this motion should be dismissed because, notwithstanding the foregoing, every reasonable effort must be made to enable the plaintiffs to locate any documents which may assist the parties to ascertain the truth. What is not permissible, or reasonable, in my view, is to require a party, in a case such as this, to incur enormous expense in what may be a futile search for something which may not exist.

[36] In Peter Kiewit, McEachern C.J. adopted what might be termed a “cost benefit analysis” which focussed on the time and expense of locating the documents being sought. The costs of producing the hard drive are not substantial, but later cases have taken considerations other than time and expense into account, primarily privacy and confidentiality. In United Services Funds v. Carter (1986), 5 B.C.L.R. (2d) 222 (S.C.), Gibbs J. declined to order that interrogatories relating to a defendants’ personal finances be answered where it was argued that the information was material because the plaintiff sought exemplary damages. He found that compelling this disclosure before liability was established had the potential to be abusive and coercive. Leave to appeal that order was dismissed: (1986), 5 B.C.L.R. (2d) 379 (C.A.). Seaton J.A. cast the issue as a balancing act, holding Courts retain the jurisdiction to refuse disclosure where information is only of minimal importance to the litigation, but may constitute a serious invasion of a privacy:

The appellant's position is that if evidence is relevant to an issue, the chambers judge is bound to require answers. I do not agree to that proposition. I think that there is an element of discretion in these matters. If, as here, the answer is only of minimal importance to the litigation and may constitute a serious invasion of the parties' privacy, I think it open to a chambers judge to decline to require that the questions be answered. That seems to be an entirely appropriate disposition in this case. I think that the Court would not interfere with the decision. The answers are of very limited importance to this litigation and no importance to other litigation. Consequently, I refuse leave to appeal. (Para. 6).

[37] The issue was addressed again by the Court of Appeal in M(A) v. Ryan (1994), 98 B.C.L.R. (2d) 1 (C.A.), aff’d [1997] 1 S.C.R. 157. In that case, the defendant psychiatrist appealed a chamber judge’s order for production of her records of visits with the plaintiff patient. Southin J.A. held that the records were not privileged, but identified the competing interests at issue:

In considering whether to make an order compelling disclosure of private documents, whether in possession of a party or a non-party, the Court ought to ask itself whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether some terms are appropriate to limit that invasion. There need not be a privilege against testimony in the classic sense for this to be a relevant question. By "private documents" I mean documents which are not public documents. I do not limit this question to what might be thought of as personally embarrassing documents.

On the one hand, a person who has been injured by the tort or breach of fiduciary duty of another ought not to be driven from the judgment seat by fear of unwarranted disclosure -- a sort of blackmail by legal process. If such a thing were to happen, the injured person would be twice a victim.

But, on the other hand, a defendant ought not to be deprived of an assessment of the loss he actually caused, founded on all relevant evidence. It would be as much a miscarriage of justice for him to be ordered to pay a million dollars when, if all the relevant evidence were before the court, the award would be for one-tenth that sum, as it would be for the injured person to feel compelled to retire from the field of battle because of a demand for documents containing intensely personal matters of little relevance. (Paras. 51-3).

In the result, the Court limited the extent of the disclosure.

[38] In Goldman, Sachs & Co. v. Sessions, 2000 BCSC 67 at 32, Smith J. (as he then was) declined to make an order for production of documents because they did not have significant probative value, and the value of production was outweighed by competing interests, which included not only the time and expense of production but also confidentiality: see also Park at para. 15.

[39] The Courts have balanced these considerations in requests similar to this one. A request for a computer hard drive was made in Ireland v Low, 2006 BCSC 393. Joyce J. relied on Goldman, Sachs & Co. and declined to order production of the hard drive because, in part, of the competing value of the plaintiff’s privacy interest.

[40] In my opinion, competing concerns for the plaintiff’s privacy and confidentiality arise in the context of this application. Even if I were able to find that the metadata had some marginal probative value, that value would be offset by these interests.

[41] As noted by Humphries J. in Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen, 2006 BCSC 554, it is not appropriate to order the production of a hard drive because there is interesting technology that one might apply to it. I would add that neither is it appropriate to produce a hard drive for the sole reason that information can be relatively easily obtained from it.

[42] Once again, I do not mean to say that hard drives and other electronic documents need never be produced under Rule 26. However in this case, the threshold of relevance has not been met.

[43] I turn now to the last category of electronic information the defendants seek from the hard drive: the plaintiff’s internet browser histories.

[44] In Park the defendant also sought production of internet browser and instant messaging histories. In that case, Dorgan J. declined production because she found that it, like the metadata, was not relevant to matters in issue. A motion for discovery of internet searches was also before the Court in Pritchard v. Crosfield, 2005 Carswell BC 3312. In that case, Master Patterson characterized the request as a fishing expedition. (Para. 15).

[45] The defendants say that the plaintiff’s internet history is relevant because she may be learning the diagnostic criteria for the injuries she complains of from brain injury sites. There are, however, so many other plausible reasons why the plaintiff might consult these sources that I do not see how her internet history will assist the defendants. I conclude that this information is not relevant. Alternatively, even if the information was of tangential relevance, I would decline to order its production for the same reasons set out above in relation to the metadata, namely the intrusive nature of the order in comparison to the probative value of the information.

2. The Photographs

[46] The defendants seek copies of the plaintiff’s photographs in hard copy and electronic form because, they say, the photographs are relevant to showing what quality of life the plaintiff is able to enjoy. The plaintiff says that the photographs are not relevant to matters in issue, and therefore, need not be produced.

[47] Whether photographs of this nature should be disclosed under Rule 26 appears to have been first addressed in Tupper v. Holding, 2003 BCSC 153. There, Master Scarth ordered that the plaintiff produce photographs from a number of vacations she had taken because they were relevant to her claim for loss of enjoyment of life. A similar order was sought in Gasior v. Bayes, 2005 BCSC 1828 and Watt v. Meier, 2005 BCSC 1834. In Gasior, Master Caldwell declined the order, finding that the photographs were “snapshots in time … taken at best out of context” (para. 4). He held that “[t]he production of photographs taken on a personal basis is … far more invasive than probative …” (para. 7). In Watt, Master Bolton declined to order production because they were not found to be relevant to the cognitive injuries pleaded.

[48] Relevance is defined by the pleadings and the pleadings in this case do claim a loss of enjoyment of life. However, in my opinion this is a situation, like the cases cited in the section above dealing with the metadata, where the value of production should be compared to competing interests.

[49] This is not a case where the plaintiff seeks damages arising out of an inability to undergo physical activity and the defendants suspect that the plaintiff may have been engaging in vigorous physical activity on vacation. Rather, the plaintiff’s predominant injury is cognitive, and the loss of enjoyment of life stems largely from that aspect of her injury. I do not see, nor have the defendants shown, how photographs of the plaintiff on vacation, or with her friends and family, may shed any light on these cognitive abilities. In my opinion, the vacation photographs (and other photographs relating to the plaintiff’s family, friends and hobbies) sought have limited - if any - probative value on this matter. Production of these photographs, however, is invasive of the plaintiff’s personal life, because the photographs are largely of moments spent with her family and friends. The limited probative value considered against the invasiveness of production leads me to conclude that production of the photographs should not be ordered.

3. The Game Unit

[50] I decline to order production of the game unit for the same reason that I declined production of the metadata: this information is not relevant to the plaintiff’s cognitive functioning.

4. The Palm Pilot

[51] The plaintiff says that this aspect of the defendants' request is, like the others already discussed, invasive. The defendants say that the Palm Pilot is relevant to assessing the accuracy of the plaintiff’s future care costs.

[52] The request for the Palm Pilot is novel, in the sense that it does not appear cases have dealt with a similar request in the past. Neither the plaintiff nor the defendants produced a case on this point, and my research has not revealed one. That said, the principles discussed in the context of the above requests dispose of this aspect of the defendants' motion. The Palm Pilot may be, to a limited extent, probative on the issue of the plaintiff’s future care costs. Ms. Stevens acknowledged in argument that the cost of such a device is in the range of $200 to $400, which is relatively insignificant in the context of this claim. Any probative value of the Palm Pilot to the assessment of the cost of future care is outweighed by the privacy interest of the plaintiff with respect to the Palm Pilot, and the invasiveness of ordering its production. It therefore need not be produced.

CONCLUSION

[53] The defendants' motion for production of the hard drive, photographs, game unit and Palm Pilot is dismissed.

“E. Myers, J.”

The Honourable Mr. Justice E. Myers

Citation:	*Desgagne v. Yuen et al,*
	2006 BCSC 955