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The Growth of ‘e-Discovery’ and Privacy Concerns

The Ontario civil justice system is adversarial, which involves two competing parties presenting their best arguments in front of a neutral and impartial arbiter (i.e. the judge or jury).

 

Despite the adversarial context, this procedure is one of full disclosure, as all parties to an action have the obligation to give the other side all relevant documentation; even if they are harmful to their case. The rationale behind this process is to enable parties to understand the case from all perspectives, narrow the issues, foster settlement negotiations, and prevent surprises, with the hope of a decision based solely on the merits of the case, rather than underhanded tactics.

 

The Discovery Phase

Prior to a civil trial, there is a phase of preparation called discovery, where each party can obtain evidence from the other party or parties by means of two main procedures: (1) documentary discovery and (2) oral discovery (also known as examinations for discovery). These processes are regulated by the Rules of Civil Procedure, RRO 1990, Reg 194 [Rules].

  • Documentary Discovery (Rule 30): Rule 30.03 imposes a positive obligation on all parties to disclose “every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to an action.” Each party files an affidavit of documents disclosing: documents in the party’s possession, control or power (Schedule A), documents that are privileged (Schedule B), and documents that were, but are no longer in the party’s possession, control or power (Schedule C). The opposing party may inspect any documents listed in Schedule A or challenge the privilege claim of a Schedule B document. This obligation is ongoing as supplementary affidavits of documents must be filed if more documents are discovered.
  • Oral Discovery (Rule 31): An examination for discovery is the pre-trial oral testimony of a plaintiff or defendant taken under oath. Each party is permitted to examine “any other party adverse in interest” one time and for less than 7 hours. Similar to documentary discovery, all questions and answers obtained through an examination must be relevant to the subject litigation. The goal of the parties is to obtain admissions, denials, and undertakings to locate additional relevant information.

 

Lawyers also have obligations under the Rules and Professional Codes of Conduct. The lawyer must certify the affidavit of documents, by confirming that they have explained to the client “the necessity of making full disclosure of all documents relevant … and what kinds of documents that are relevant” (Rule 30.03(4)). Lawyers face professional misconduct allegations should they fail to fulfill this obligation.

 

Modern Developments in Online Presences

With the development of social media platforms as a source of personal information, questions have arisen regarding the obligation of disclosing these online productions. Types of possible evidence found through Facebook, for example, include posts, pictures, videos, or evidence of event attendances.

 

While informal discoveries, where a party goes onto another’s profile to comb through publicly available information. This process is a valuable tool for lawyers to obtain basic information about the other party and has also been used in attempts to find incriminating evidence on a plaintiff who is attempting to assert an injury. While informal discovery is a non-issue, since this these information is publicly available, privacy concerns arise with private accounts and the formal affidavit of documents process. In cases where one’s online profile is fully private or is minimally public, lawyers have sought disclosure of such information.

 

The question then becomes: Does a party’s discovery obligations compel disclosure and production of all social media activities, despite concerns of privacy?

 

A. What is a document?

A “document” is defined by Rule 30.01 as including:

“a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form…”

                                Rules of Civil Procedure, RRO 1990, Reg 194.

 

This definition is broad enough to cover all information on social media platforms, including metadata. Therefore, you may be obliged to produce this documentation, subject to relevancy.

 

B. Testing Relevance: The Sedona Principles

Canada has implemented a set of principles to deal with e-Discovery. The Sedona Canada Principles Addressing Electronic Discovery were first published in 2008 and received a second edition in 2015. The Principles were immediately recognized by federal courts as an authoritative source of guidance for Canadian practitioners and are explicitly referenced in the Rules of Civil Procedure. Importantly, the Principles set out a set of factors to test an electronic document’s relevancy:

 

(i) the nature and scope of the litigation;

(ii) the importance and complexity of the issues and interests at stake and the amounts in controversy;

(iii) the relevance of the available electronically stored information;

(iv) the importance of the electronically stored information to the Court’s adjudication in a given case; and

(v) the costs, burden and delay that the discovery of the electronically stored information may impose on the parties.

Sedona Canada Principles Addressing Electronic Discovery, 2nd ed, 2015.

 

In a recent 2020 motion, a plaintiff represented by the lawyers at Littlejohn Barristers avoided disclosing several private documents that were unrelated to the motor vehicle accident. The defendant requested information regarding a domestic dispute and the drug use histories of the plaintiff’s daughter. Despite the request, the court determined that the mere possibility of relevance does not warrant interfering with the privacy interests at play. Here, the defendant had not satisfied the principle of proportionality that arises in the discovery context, as there must be a balancing of a document’s relevancy and its intrusion on privacy. This is a common policy issue that often comes into play in the context of E-Discovery.

 

C. Policy Issue of Privacy

As a party to a civil action, your discovery obligations require you to disclose and produce all documents relevant to any matter in issue. This includes online, social media information. The plaintiff in Stewart v. Kempster, 2012 ONSC 7236, sought damages for loss of enjoyment of life and loss of amenities. After learning that the plaintiff went on vacation, the defendant sought production of photographs privately published to Facebook, to challenge the plaintiff’s credibility. The court denied compelling production, in line with the underlying principles regarding document production. They adopted the following statement from the BC Superior Court:

 

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.

Desgagne v. Yuen, [2006] B.C.J. No. 1418.

 

The opposing party does not have the right to everything else on an online account and just because an online document may be potentially relevant, it does not mean that there is an obligation to produce. There must be actual evidence that documents are relevant; not mere speculation. A similar factual scenario arose in Murphy v. Perger, [2007] O.J. No. 5511 (SCJ), after the defendant sought disclosure of photos posted on the plaintiff’s private portion of Facebook. In this case, they successfully argued that because there were photos available on the publicly accessible portion of the account and since the plaintiff is using them as evidence to assert their claim, the latter private photos are relevant.

 

Therefore, a major policy issue with regards to e-Discovery is limiting so-called ‘fishing expeditions’, where parties search for evidence on little more than a whim and at the expense of the individual’s privacy. In M. (A.) v. Ryan, [1997] 1 SCR 157, the Supreme Court of Canada identified this issue:

 

[T]he 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.

                                M. (A.) v. Ryan, [1997] 1 SCR 157 (SCC).

 

Conclusions

This policy issue will continue to be relevant as society becomes even more invested in online interactions. All individuals should take care when using social media, in order to ensure privacy.

 

To learn more about e-Discovery, give Littlejohn Barristers a call today. We have a team of experienced personal injury lawyers serving Barrie and the surrounding area and our record of success speaks for itself.

 

Notes:

1. Stewart v. Kempster, 2012 ONSC 7236 (CanLII), <http://canlii.ca/t/fvf89>, retrieved on 2020-06-03

2. Desgagne v. Yuen et al, 2006 BCSC 955 (CanLII), <http://canlii.ca/t/1nnpc>, retrieved on 2020-06-03

3. M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 SCR 157, <http://canlii.ca/t/1fr3r>, retrieved on 2020-06-03

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