Bishop v. Minichiello, 2009 BCSC 358 (CanLII)

  • April 07, 2009

Date: 2009-04-07, Docket: 16558 T.J. Milnick J. | Link

Defense seeks production of the hard drive on the plaintiff's computer for the purpose of isolating and producing information to determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning each day. The court noted that the computer was used by all members of the family and not just the plaintiff, so there are privacy issues to consider, and that an order for the production of the entire drive would essentially be an order for a search (para 49). "The information sought by the defence in this case may have significant probative value in relation to the plaintiff's past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents.  Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff's life.  In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege.  For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff's family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case.  I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed." (para 57) See also Bishop v. Minichiello, 2009 BCCA 555 (CanLII), 2009-12-08, where the court dismissed the application for leave to appeal the decision narrowing the scope of the search of the computer - applicant had originally sought Hotmail and website activity as well as Facebook.