Canada: Like It Or Not – NS Courts Decide On Production Of Electronic Information

Last Updated: October 1 2014
Article by Brian Perry and Ian Dunbar

On January 28, 2014 the NS Court of Appeal and Supreme Court each released separate but complementary decisions dealing with the production of "electronic information" – including Facebook content – in a personal injury claim. Together, they offer a helpful framework when seeking production of electronic information: 

  • Electronic Information Production Framework. The Court of Appeal laid out a helpful framework for courts and parties to use in requests to produce "electronic information" – like "Facebook" content – that will probably be relevant in other Provinces. 
  • Relevance – and evidence of it – is paramount. Relevance of the information sought – even when it's electronic – is still paramount. A party seeking production will need strong, clear and cogent evidence of that relevance. In the past, some courts have ordered production of completely private Facebook content by inferring its relevance – but these decisions support the view that more than an inference will be required for a production order in the future.
  • So is Privacy. Both decisions reflect the courts' greater willingness to order production of usage records than private content based on reduced privacy interests – and emphasize a litigant doesn't grant a licence to unnecessarily delve into every aspect of her private life simply by claiming the damages the law allows.

Motions for production of electronic information can be expensive, time consuming and "salt the earth". Before forging ahead, carefully consider whether there's really anything to be gained by obtaining a plaintiff's private electronic information – or if the public information is enough. 


In Lauschway v. Messervey, Mr. Lauschway was self-employed selling health products over the Internet before he was injured in an MVA. He made a large claim for income loss on the basis his ability to sit at his computer was significantly reduced. The NS Court of Appeal granted Mr. Messervey's request for production of metadata from Mr. Lauschway's hard drive to conduct a forensic analysis of his computer usage:

Three-Step Analysis.  The NS Court of Appeal took the opportunity to establish a framework to assess requests for production of "electronic information":

1. "Electronic Information". The "metadata" on any computer hard drive is "electronic information" as defined in the NS Civil Procedure Rules – and subject to production under them.

2. Relevance. Mr. Lauschway put his computer use "squarely" in issue: there was a clear, direct link between his time at his computer and his income – and since he worked alone there was no other way to verify his claims. The evidence satisfied the "trial relevancy" test for production in the NS Rules and Mr. Messervey should have the information to test Mr. Lauschway's income loss claim.

3. Burden of Proof & Privacy. If the electronic information is relevant, it is presumed it should be produced under NS Rule 14.08 unless the responding party rebuts the presumption. Mr. Lauschway argued that his reasonable expectation of privacy precluded production. The Court had to exercise its discretion – and decided the production order's terms adequately protected Mr. Lauschway's privacy interests while allowing Mr. Messervey to fairly defend the claim.

"Top 10" Inquiry. The Court offered ten factors a judge assessing a motion for production of "electronic information" may consider, including reliability, proportionality, privacy and availability of alternative measures or sources of information – all balanced by the court's responsibility to ensure effective time and resource management.

Clear & Cogent Evidence.  The evidence of relevance was clear and cogent: the extensive evidence included several detailed solicitors' affidavits referencing correspondence among counsel, discovery testimony extracts, Mr. Lauschway's evidence describing his computer usage, and two expert opinions about the proposed forensic analysis – and Mr. Lauschway and both experts were cross-examined on their affidavits.

Click here to read the NS Court of Appeal's decision in Lauschway v. Messervey, 2014 NSCA 8.


In Conrod v. Caverley, a NS court considered for the first time how 2009 amendments to the NS Rules – and the "trial relevancy" requirement – affect production of a plaintiff's private Facebook information. Conrod was released on the same day, but without the benefit of, the Court of Appeal's Lauschway decision.

Ms. Conrod claimed the injuries she suffered in an MVA drastically changed her social and recreational activities – including her ability to spend time on websites like Facebook. The defendants could access Ms. Conrod's public Facebook profile, but also wanted to see the private "friends only" content. The Court refused to order Ms. Conrod to produce printed copies of the "friends only" content of her Facebook profile – but ordered she produce a printout of her Facebook usage history:

Evidence (Again). The evidence of the relevance of Ms. Conrod's public Facebook account fell short of the "trial relevance" test: the defendants offered nine tiny, grainy photographs from one page of Ms. Conrod's public Facebook account; the Court couldn't tell where or when the photographs were taken or posted – or, in some instances, whether she was even depicted. Since the Court couldn't determine the date of the public photographs, it considered the public content irrelevant to the issue of Ms. Conrod's post-accident functioning.  In turn, the Court refused to infer that the private, "friends only" Facebook content was relevant – and refused to order that she produce it. 

Privacy. Ms. Conrod could easily print her Facebook usage history herself. There was no great intrusion into her privacy when balanced against the defendants' right to fairly defend her claim – and a Facebook usage printout doesn't contain the same scope and breadth of information as that in a hard drive. 

Click here to read the NS Supreme Court's decision in Conrod v. Caverley 2014 NSSC 35.


A party usually wants electronic information to assess or challenge damages and credibility.  But remember – like video surveillance – there's no guarantee a plaintiff's electronic information will contain a "smoking gun". These decisions illustrate that motions for production of electronic information – forgetting the cost to analyse it – can be complicated and expensive. Before jumping into a motion for more, consider whether – and how much – the additional electronic information is likely to benefit your case.  The answer may be it doesn't – or not much; for example, when it's likely to be "more of the same" (another 100 pictures of the plaintiff socializing, for instance).  However, there may be strong evidence only available from electronic sources – like in Lauschway – in which cases courts clearly endorse a production order: 

Electronic Information Production Framework. The Lauschway framework – which seems applicable to all electronic information – is helpful when deciding whether to seek production of electronic information. Its emphasis on "proportionality" and "balance" will likely have an impact even in those Provinces that still apply the more lax "semblance of relevancy" test to production requests. The location and quantity of personal "electronic information" is also rapidly expanding: what about Netflix accounts? Snapchat records? Usage information for the apps on an iPhone? So be careful: the electronic information sought must satisfy the applicable Rules' definition of "electronic information" (or "electronic document"). The Lauschway framework recognizes the legitimacy of a claimant's privacy interest in this information – but also supports production of a wide variety of electronic information, depending on the particular facts.

Relevance – and Evidence of It – Still Paramount. Relevance of the information sought – even when it's electronic – is still paramount. The 2009 change in the NS Rules for pre-trial document production from the "semblance of relevancy" test to the more stringent "trial relevancy" test is important in both decisions. A party seeking production needs strong, clear and cogent evidence of relevance – and should consider whether its evidence will, objectively, meet the threshold. Facebook production orders are becoming more common. In the past, courts in some provinces have simply inferred that, due to Facebook's social nature, a completely private Facebook profile will contain some content relevant to a claimant's post accident functioning– but the Conrod and Lauschway decisions support the view that going forward, the court will require more than this simple inference for a production order.

So Is Privacy. Not all "electronic information" is equal – at least in terms of production. Courts generally seem more willing to order a party to produce usage records than content like photographs or private Facebook messages, based on (arguably) reduced privacy interests. For example, courts have ordered production of computer meta-data, hard drives or records from Internet service providers to ascertain how often or long someone is on-line or her capability to performing sedentary work. Lauschway and Conrod seem to follow that trend – and emphasize that courts won't accept that a litigant grants  a defendant licence to delve into aspects of her private life that don't require it to properly dispose of the litigation by merely claiming the damages the law allows. Rather, courts will carefully scrutinize the evidence and terms of any proposed order, before determining whether an order is warranted. 

McInnes Cooper prepared this article for information; it is not legal advice. Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2014. All rights reserved.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions