Ontario Civil

Civil Procedure

Request for access to plaintiff’s electronic documents was speculative fishing

Plaintiff brought action for damages from trip and fall. Plaintiff claimed that injuries reduced enjoyment of life and incapacitated her from employment. Defendant brought discovery motion seeking orders for plaintiff to provide various documents, including information on electronic devices from social media and on-line gambling accounts; border records; husband’s border records; banking records; and to attend at examination for discovery to answer questions relating to production of information. Application granted in part. Plaintiff had no home computer since 2012. Facebook was only social media provider she used. Plaintiff denied online gambling or gambling anywhere but particular casino and there was no evidence to contrary. Plaintiff was not required to produce content of private section of Facebook account. There was no reason to expect private page to contain documents that would tend to give more than content of public page to enable defendant to procure admissions to dispense with formal proof or destroy plaintiff’s case, know case it was to meet, eliminate or narrow issues or avoid surprise at trial. Defendant was not entitled to plaintiff’s electronic documents stored on iPhone and iPad. Defendant’s request for access to plaintiff’s electronic documents was speculative fishing. No electronic document was identified that had bearing on work capacity or enjoyment of life issues. There was no evidence of failure to disclose. Particulars of Internet sites visited by plaintiff did not correlate with and was not measure of how much time plaintiff could work on computer at desk or length of functional focus or assessment of reasoning capacity. Plaintiff was not required to produce computer devices, electronic documents, Internet site records or metadata to defendant for forensic analysis. There were significant privacy interests at stake in plaintiff’s electronic documents and search for metadata allowed access to everything in computer memory. Plaintiff was to authorize release of casino records. Plaintiff was regular patron at casino and distraction activity might indicate workplace capacity in form of focus, concentration, reason and ability to stay on task. Proportionality was not in issue and privacy interest was minimal. Plaintiff was to provide border records. Plaintiff implicitly accepted relevance of border crossing activity but husband’s border crossing records were not relevant. Plaintiff was to produce copy vehicle loan application and purchase agreement. Bank records were not relevant to issues of plaintiff’s work capacity or enjoyment of life. Plaintiff was to attend examination for discovery.

Merpaw v. Hyde (Feb. 20, 2015, Ont. S.C.J., Rick Leroy J., File No. CV-08-1473) 250 A.C.W.S. (3d) 403.

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