Computer Hard Drives Not Producible In Specie

Last week’s Alberta Court of Appeal decision in Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 deals with the important issue of whether, as part of civil documentary disclosure, entire computer hard drives are producible in specie. Some have argued that the hard drives are “documents” in the same way as, say, a notebook is a document and so ought to be produced, at least for inspection.

The Alberta Court rejects this position noting that only certain parts of the hard drive have relevance and are producible. The party producing makes production of those relevant materials only and the hard drive itself is not producible.

The decision, while based on Alberta Rules, is relevant for its reasoning in Ontario.

Part of the Court’s decision follows:

Issue One - Did the chambers judge err in ordering production of the imaged hard drives in specie?

1. Were the imaged hard drives producible as records under Rule 186?

[28] “Record” is defined in Rule 186, which reads:

186 In this Part, “record” includes the physical representation or record of any information, data or other thing that is or is capable of being represented or reproduced visually or by sound, or both.

[29] The CHR argues that a computer hard drive is a single record containing relevant and material information and, therefore, it is automatically producible under Rule 186. Innovative disagrees and says that a computer hard drive is not a single record as that term is described in Rule 186 and is not producible in specie. Rather, says Innovative, a computer hard drive is merely an electronic filing cabinet containing many records, only some of which are relevant and material. It is Innovative’s responsibility to determine what is relevant and material and the CHR is only entitled to relevant and material information stored on the imaged hard drives, and not the imaged hard drives.

[30] To assess the merit of these arguments, it is necessary to consider the scheme of pre-trial discovery provided for in the Rules. Rule 187 requires parties to a lawsuit to prepare and serve an affidavit of records on all opposing parties. Rule 187.1(2) requires that the affidavit disclose all “relevant and material records” that are, or have been, in the deponent’s possession, custody or power. The party that prepares the affidavit must then allow the other side to inspect the relevant and material records still in its possession, provided there is no legitimate ground, such as privilege, to object to their production. It is also obliged to produce the records later at discovery.

[31] The Rules used to require the production of documents, rather than records, but this was changed in 1999 by amendments designed to dispense with the “implied formality” found in the word “document”, and to broaden the scope of discovery by making clear that information stored on a variety of modern media must be disclosed.^[4] In his annotations to the Rules, Mr. Justice Côté notes that use of the word “records” embraces most forms of information storage outside of the human mind. Thus, he advises, information stored on media such as computer discs and videotape are subject to production.

[32] Are computer hard drives, such as the imaged hard drives in this case, records which fall under Rule 186? The rule makes clear that the concept of “records” includes the “physical representation or a record of information, data or other thing”. Thus, it is arguable that where information is physically encoded on a disc or tape, the storage medium itself is a producible record.^[5] It must be remembered, however, that what is ultimately producible in the end is only the relevant and material information found on such a storage medium. A record of this sort, therefore, can only be subject to production, in specie, if everything on it is relevant and material to the lawsuit and its production is not barred by privilege or some other legal impediment.

[33] A computer hard drive is a computer disc, with a large storage capacity, upon which information is stored. It is, however, a mixed storage facility that contains such things as program files, metadata, and enabling software that allows the computer to run and to interpret the encoded data. By its very nature, therefore, a computer hard drive will inevitably contain a good deal of stored data that is neither relevant nor material to the lawsuit. Moreover, due to the ubiquitous nature of computers in modern society, the hard drive will often have a great deal of information or data stored upon it that is not only irrelevant and immaterial to the lawsuit, but information that is private or confidential and ought not to be produced. It follows that it will be an exceptional case when a computer hard drive is producible in specie.

[34] Mr. Justice Slade came to a similar conclusion in Roeske v. Grady, 2006 BCSC 1975 (CanLII), 2006 BCSC 1975, when he denied an application to compel the production of an entire hard drive. He found it was only the relevant information found upon the hard drive that was producible. In coming to this conclusion, he applied the following quotation from the master in Northwest Mettech Corp. v. Metcon Services Ltd. [1996] B.C.J. No. 1915, at para. 18:

In my view the plaintiff is not entitled to production of the hard drive itself. They are entitled to production of only the relevant electronic data which is resident on that hard drive. As I understand it, a computer hard drive is simply a medium on which data is stored on a semi-permanent basis in the form of electronic impulses. It may be thought of as an electronic filing cabinet which contains electronic files, each of which in turn contains electronic documents. The defendants are obliged to list all relevant documents of whatever form (including electronic documents resident on computer hard drives). In my view they are not required to list the entire contents of nor are they required to produce their entire electronic filing cabinet any more than a party is not required to list or to produce the complete contents of its steel filing cabinets which house documents which are in paper format. In my view the plaintiff has not shown any proper basis to require production of the actual hard drive. The plaintiff is entitled to know with certainty, however, that all relevant electronic data which is resident on the hard drive has been disclosed. ...

[35] This view accords with the traditional position articulated by this court with respect to the production of documents. In Lazin v. Ciba-Geigy, [1976] 3 W.W.R. 460 (Alta.S.C.(A.D.)), 66 D.L.R. (3d) 380, the court was asked to decide whether to uphold an order that the plaintiff produce her diary for discovery. The defendant argued the diary was a document and that it was entitled to review it in its entirety, even though the defendant acknowledged the diary might contain both relevant and irrelevant information. Mr. Justice McDermid addressed whether the entire diary could be considered a document. He referred to the decision of this court in Royal Bank v. Wallis, [1918] 2 W.W.R. 620, 13 Alta. L.R. 416, (1918) 41 D.L.R. 383, in which the court discussed whether a bank’s book of accounts was a “document” that was subject to discovery. The court noted in that case at 623:

It is apparent therefore that what a party is required to produce is any “document” relative to the issues. And the chief question is this: Is a ledger or other book of account admittedly containing accounts relating to transactions between the bank and many other individuals not connected with the issues in the case properly to be termed a “document” within the meaning of the rule, and the order based thereon?

It seems to me that this is not so. The whole book cannot be called a “document.” Rather it is a series of documents bound together for convenience.” (emphasis added)

[36] Mr. Justice McDermid then went a step further and concluded that even if the diary was a document the defendant was not entitled to see it in its entirety, as a matter of course, because the plaintiff was still only obliged to disclose those parts of the diary that were relevant to the lawsuit. His Lordship held, at 463:

In my opinion reference in the present Rule 188 to “what documents relating to the matters in question” means only the relevant portions of what might physically be called a document. If part only of a page is relevant then that is the document that must be disclosed in the affidavit. As stated in Williston and Rolls, Law of Civil Procedure (1970), vol. 2, at p. 898:

If only part of a document is relevant, the proper course is either to disclose only the relevant part or to disclose the whole document with a claim to seal up the irrelevant part, or the part which is not material may be covered up during inspection.

[37] As a final matter, the court went on to prescribe the appropriate procedure for separating the relevant from the irrelevant material when both kinds of material are found in the source. Mr. Justice McDermid stated, at 463-64:

When there is a contest as to relevancy a Judge must inspect the document and decide whether the disputed part is relevant or not.

The proper procedure is for the appellant to make a proper affidavit as to “what documents relating to the matters in question are in the possession or power of the party.” She does so after consultation with her counsel. If counsel is unable to decide he must seek expert advise as to whether a document is relevant. As stated in Williston and Rolls at p. 897: “The duty of determining the relevance of documents rests on the party making production, and he cannot avoid this responsibility ...”.

If the opposing party is not satisfied such party may be permitted by the Court to cross-examine upon the affidavit: Rule 194(3).

The opposing party may apply to the Court for a further and better affidavit if such party considers a relevant document has been omitted. In such an application the opposing party must satisfy the Court as to the relevancy of the contested document.

[38] I see no reason to depart from these general principles here merely because the Rules now speak of records rather than documents. The court’s reasoning is still applicable. A computer hard drive, being a mixed storage facility, like a diary, is not producible in specie. It is the duty of the party preparing the affidavit of records, however, to disclose all relevant and material information found on it. When a dispute arises as to relevance and materiality, the matter should be settled by the court. Where matters are particularly complicated, the court may want to appoint its own expert to examine the hard drive to assist it in determining what must be produced.

[39] Having said this, I acknowledge there may be cases where it is appropriate for a judge to order production of an entire hard drive for inspection by an expert, where it is apparent that one of the parties is deliberately trying to thwart the discovery process by not disclosing relevant and material information. There must be strong evidence of this, however, that goes beyond mere speculation. As the court noted in Nicolardi v. Daley, [2002] O.J. No. 595, when it considered this question:

It is not sufficient for a client to say in the course of a lawsuit, “I believe there are more documents,” or “it appears to me that documents are being hidden.” That would be no more than a fishing expedition. There must be specific evidence of non-disclosure (para. 33)

[40] A good example of the application of such logic is the decision of Madam Justice Veit in Spar. In that case, the defendants, who had previously worked for Spar, were accused of stealing information that enabled them to secure a maintenance contract from the Department of National Defence on behalf of their new employer. Spar seized the defendants’ hard drives, under an Anton Pillar order, and made duplicate drives. A chambers judge then ordered the defendants to make proper disclosure of the relevant and material records on the hard drive, failing which the plaintiff would be entitled to review the entire hard drive. Madam Justice Veit, when granting access to the hard drives, noted that the defendants had deliberately failed to disclose e-mails that had passed between them at the times relevant to the lawsuit, despite the chambers judge’s order. In addition, she noted that this was a multi-million dollar claim, the parties were extremely IT competent, the producing parties were former employees who had started to compete with Spar, and the facts had already justified an Anton Pillar order.^[6] On this basis, she granted access to the duplicate hard drives.

[41] While I agree with Madam Justice Veit’s decision, I would add a caveat. Even in circumstances where it is clear that a litigant is thwarting the litigation process, and the court deems it appropriate to order production of a hard drive, measures should be taken to protect disclosure of irrelevant and immaterial information which the producing party objects to produce. Although litigation confidentiality exists, many times that will not be sufficient to protect personal, confidential and private material. A judge should always hear representations as to how information that is neither material nor relevant can be protected from exposure, and frame any production order in the least intrusive manner.

[42] In this case, the CHR acknowledged, and the case management judge accepted, that the imaged hard drives contained material that was neither relevant nor material to the lawsuit. Indeed, the case management judge recognized this when he held, at para. 3 of his order, that: “The Defendant shall not print or make notes of any records on the computer imaged material that are not relevant and material to the within Action”. In addition, there was no evidence that Innovative was deliberately trying to hide relevant and material records that existed on either its office computer hard drives or the imaged hard drives in the box. In fact, what evidence that did exist indicated that Innovative had co-operated fully from the start by agreeing to have its office hard drives copied and put into court, along with the disputed hybrid files. Here the only issues of consequence between the parties, at the time of the chambers hearing, were whether the hybrid files had to be produced, a live issue given this court’s decision in Innovative One, and how the irrelevant and immaterial information could be weeded out.

[43] I conclude, therefore, that there was no basis upon which the case management judge could order production of the imaged hard drives. By allowing the CHR, as the party entitled to production, to determine what was relevant and material, the chambers judge turned the whole process of production on its head. It is for the producing party to decide what is relevant and material, and there was no basis to allow the CHR to look at all the stored information in its search for what was relevant and material.