Court Rejects Disclosure of Computer Hard Drive and Social Media Accounts in Lawsuit

In the recently published case of Dosangjh v. Leblancand St. Paul’s Hospital, 2011 BCSC 1660, Master Taylor of the Supreme Court of British Columbia considered a defendant’s application for disclosure of documents on the plaintiff’s hard drive, social media accounts, iPhone and digital camera.  The application was made in the context of a lawsuit respecting medical negligence leading to a stroke that resulted in permanent physical and cognitive disabilities for the plaintiff.  The defendant’s application to the court was based on an argument that the plaintiff, by bringing her action in the courts, had put her general health, enjoyment of life and employability in issue.  The plaintiff’s lawyer argued that the defendant’s application demanded records that were not relevant to the lawsuit and also represented “a significant infringement on her privacy”.

 

Master Taylor agreed with the position of the plaintiff and denied the defendant’s application.  In doing so he said the following:

 

[28]  The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites.  Rather, the defendant merely says that the health, enjoyment of life and employability are in issue.  Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy.

 

[29]  To be able to obtain a litigant’s private thoughts and feelings as expressed to friends or family members after the fact is, in my view, similar to a party intercepting private communications of another party.

 

[30]  I am unable to envisage any rational justifications for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individuals general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of a communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind.

 

[33]  I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait…

 

[37]  Surely if the material sought by the defendant from the social media sites on the plaintiff’s computer is an invasion of privacy, the application for metadata…would also be a serious invasion of the individual’s privacy…

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