In Bishop v Minichiello, the Plaintiff sought damages for a brain injury. The lawyer for ICBC brought an application to compel the Plaintiff to produce the hard drive of his computer, as the ICBC lawyer wanted to examine the Plaintiff’s hard drive for the amount of time he spends on Facebook. The Court granted the application.
[46] Electronic data stored on a computer’s hard drive or other magnetic storage device falls within the definition of “document” under R. 1(8) of the Rules of Court: Ireland at para. 6.
[50] Metadata is information recorded or stored by means of a device and is thus a document under R. 1(8): Desgagne at para. 29. Metadata is a report of recorded data that is generated by computer software. It is not something created by the user; rather, it is based on what the user does with their computer. In both Park andDesgagne, it was held the threshold of relevance had not been met to order production of records of the frequency and duration of computer use. However, Mr. Justice Myers in Park stated at para. 42 that he did not mean to say that hard drives and other electronic documents need never be produced under R. 26. Thus, in the appropriate case if the threshold of relevance is met, a hard drive may require production.
[53] Similarly, the application at hand is of narrow scope. The defence wishes to have the plaintiff’s hard drive of his family computer produced and analyzed to determine the periods of time the plaintiff spent on Facebook between eleven at night and five in the morning, each day.
[54] Examination for discovery evidence of the plaintiff’s mother confirms that the plaintiff is the only person in the family using the family computer between those hours. The plaintiff suggests that, at times, friends may use the computer once he logs onto Facebook. But that is an evidentiary issue for trial. The issues of privacy and solicitor-client privilege are basically resolved as only the plaintiff has the password to his Facebook account and he has not used this account to converse with his counsel.
[55] It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents. This sentiment was approved in Chadwick. Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant. If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged).
[56] The defence argues that this case is distinguishable from Baldwin and that the information sought is relevant. The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed. This is because he spends a substantial amount of time on Facebook chatting with this friend. The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.
[57] The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents. Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.
