Warman v. National Post Company 2015 ONSC 267 (CanLII)

  • January 26, 2015

Date: 2015-01-26 Docket: 08-CV-00352197SR | Link

Claim in defamation for various internet postings published by the Defendants. In March 2010, the Defendants brought a motion seeking the examination of the Plaintiff’s laptop by an independent expert. Various prior motions in the case focused on the appropriate degree of access to the Plaintiff’s computer hard drive by way of documentary discovery. A protocol was established with respect to the examination of the contents of the hard-drive. A report on the hard-drive contents and over 12,000 pages of heavily redacted appendices were produced and provided to the Defendants. The Defendants brought the present motion for an order permitting them to look behind the redactions for relevance and privilege. Master Short held that two separate experts reports concluded that there was no evidence to support the allegation against the Plaintiff. In light of the proportionality rule, Master Short emphasized the need for restraint on the extent of electronic discovery and urged that proportionality replace relevancy as the most important principle guiding discovery. He dismissed the motion and denied further production of the redacted appendices, concluding that any further production would be nothing more than a fishing expedition. Master Short admitted that his determination with regard to proportionality was, in part, informed by the fact that information from a personal computer hard-drive was at issue. Personal computers attract heightened privacy interests. The search of one’s personal computer is highly invasive.