The extent to which technology is ingrained in our everyday lives means that evidence in most civil proceedings is primarily made up of electronic documents. This applies to employment law cases, which often involve email exchanges and company documents that are stored electronically. This creates some challenges when it comes to Discovery – the process by which parties exchange evidence in civil cases prior to trial – as electronic documents can be edited, deleted, stored in a variety of different places and accessed through different means. Not only that, but electronic devices store a wide range of information and data, oftentimes including personal information, meaning that accessing documents stored on such devices that are relevant to a case can be quite intrusive.
All of these challenges come into play when an electronic document appears to be either altered or missing from a party’s evidence. Rather than requiring that the party conduct a physical search, or having a forensic examiner look at the physical document to determine whether it is an original or has been altered, with electronic documents, such situations often require searches of entire electronic devices and access to peoples’ personal accounts.
Courts and employment lawyers have had to deal with how to apply Discovery rules to electronic evidence, including how to determine when the court will order that someone provide access to their electronic accounts and/or devices such that they can be inspected. In Frangione v Vandongen et al, 2010 ONSC 2823 [Frangione], the Ontario Superior Court of Justice summarized the law on orders to inspect electronic devices.
First, under Rule 30.06 of the Rules of Civil Procedure, O. Reg. 575/07, s. 6 (1) (the “Rules”), the court may order production or inspection of a document where it is satisfied “by any evidence” that a relevant document in a party’s possession, control or power may have been omitted. Therefore, the first consideration is whether the missing document is evidence that a document is both relevant and missing. In Leduc v. Roman, 2009 CanLII 6838, the Superior Court affirmed that mere speculation that a relevant document is missing is not sufficient. There must be some actual evidence of the fact.
Second, Ontario courts have confirmed that the definition of “document” includes data stored electronically, meaning that that court can order production of things like metadata.
Third, production or inspection of electronically stored documents may require any of three things – the production of hard copies of the documents, the production of electronic copies of the documents, or the inspection of the storage device the documents may be on. (Nicolardi v. Daley, [2002] OJ No 595 (SCJ) What means will be appropriate in any given case will depend on the situation. According to Rule 32.01 of the Rules, the court will make an order for inspection of property only where it appears to be necessary for the proper determination of an issue in a proceeding. Therefore, a court will only order the inspection of a storage device where it is necessary.
Fourth, according to Rule 29.2.03 of the Rules and the decision in Frangione, the court is required to make various considerations when determining whether to order the inspection of electronic devices. These include: issues of proportionality, such as time, expense, undue prejudice, undue interference with the orderly progress of the action; whether the info is readily available to the requesting party from another source; and whether the order would result in an excessive volume of documents.
In practice, these principles require that a party seeking an order to inspect electronic documents or devices ensure that the inspection is necessary for the determination of an issue in the proceeding and that the request is not overly broad. That is, the request should be specifically tailored to seeking what information or documentation is actually required to determine the issue and should propose to use the least intrusive means necessary to obtain it.
Takeaways
In civil litigation, where it appears that a relevant electronically stored document has been altered or is missing, one is not required to merely rely on the other party’s assertion that they do not have the original document. However, before bringing a motion for the inspection of an electronic device, parties should consult with a forensic computer expert to determine what must actually be produced for inspection to find the document and the least intrusive means of inspecting it.