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Nova Scoita Court of Appeal Orders Metadata Production

Posted by John T. Rafferty, Q.C. on 5 March 2015

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The Nova Scotia Court of Appeal has recently ordered an injured party to provide the metadata from the hard drive on his personal computer to the defendant. In Laushway v Messervey, the plaintiff was injured in a motor vehicle accident, which he claimed reduced the time he was able to use a computer for his self-employed business. The defendant brought a motion to have the plaintiff produce the metadata from his hard drive for analysis to determine the plaintiff's usage pattern. The plaintiff, citing concerns, appealed the production order granted by the motions judge.

The Court of Appeal confirmed the decision of the motions judge. It found the defendant had established the necessary three part test:

  1. the metadata is electronic information, and therefore subject to a production order under Nova Scotia's Civil Procedure Rules;
  2. the metadata is relevant to verify the plaintiff's claim; and
  3. the plaintiff did not rebut the presumption that the disclosure of the metadata is necessary for justice in the proceeding.

In the result, a plaintiff may be required to produce their hard drive to allow specialists to analyse their metadata if it is relevant to their claim (for example, loss of income related to computer use). Forensic assessment specialists are able to analyse metadata with minimal intrusion to the privacy of the plaintiff.