Master Orders Plaintiff to Produce Identical Copy of Hard Drive From Which Some of Its Productions Had Been Taken

Hummingbird v. Mustafa et al. involved some interesting issues in the evolving law of “e-discovery”.

The defendants asked the court to order production of the hard drive of a computer that the defendant Mustafa had used while in the employ of the plaintiff Hummingbird. Some of Hummingbird’s productions in the litigation had come from that hard drive.

Master Sproat granted the order, noting that the definition of “document” in subrule 30.01 of the Rules of Civil Procedure was broad enough to include the hard drive itself. The Master considered the request for production of the hard drive to be “tantamount to a request to review an original of a production, which is permitted by rule 30.04 of the Rules”.

Other factors that the Master thought were significant included:

  • Having an original of the hard drive would enable the defendants to inspect the documents without disclosing to the plaintiff what they were examining or their strategy;
  • With the hard drive, the defendants could conduct tests to see if the drive had been altered in any way;
  • The cost of redacting non-relevant documents would be high and the exercise time-consuming, making it more efficient to have the hard drive itself produced. There was no evidence in this case to suggest that non-relevant documents on the drive were particularly sensitive;
  • However, should Hummingbird wish to redact documents, it could do so, at its own expense;
  • Once a document had been determined to be relevant, the “metadata” in relation to that document should also be produced. (“Metadata” is information about a document that does not appear on the document itself, but is stored on the computer. Examples are: the date and time the document was created, by whom, when the file was last accessed, when it was last printed, etc.)

The order that metadata be produced is an interesting one. If this order is valid in principle, why would a party not have to produce metadata in relation to all relevant electronic documents, in every case?

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