MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 261
Nova Scotia’s civil rules also provide judges with guidance on how to
deal with a party’s failure to disclose documents and enumerate situations
where judges may subsequently order disclosure:
Rule 14.13(3) –A judge who orders a person to provide access to an original
source of relevant electronic information may include in the order terms under
which the access is to be exercised, including terms on any of the following:
(a) a requirement that a person assist the party in obtaining temporary access to
the source;
(b) permission for a person to take temporary control of a computer, part of a
computer, or a storage medium;
(c) appointment of an independent person to exercise the access;
(d) appointment of a lawyer to advise the independent person and supervise the
access;
(e) payment of the independent person and the person’s lawyer;
(f) protection of privileged information that may be found when the access is
exercised;
(g) protection of the privacy of irrelevant information that may be found when
the access is exercised;
(h) identification and disclosure of relevant information, or information that
could lead to relevant information;
(i) reporting to the other party on relevant electronic information found
during the access.
Although the changes do not necessarily provide greater access to
social networking information, they provide clarity for courts in issuing
orders and recognize the unique challenges of social networks and other
electronic evidence. Of particular importance is the reference to using
independent third parties to supervise access and taking appropriate steps
to protect the privacy of irrelevant information.
Most of the cases discussed below focus on the nature of discoverable
evidence. Courts have generally ruled that the truth seeking process
subverts privacy and the expectation of privacy. Additionally, as social
network evidence becomes more common in court, formalized court rules
provide greater certainty for litigants (particularly in non-commercial
litigation) about what they may expect in the discovery process.
B. Relevance and Discoverability
In a contract dispute, a party may be under an obligation to disclose
emails between internal sources leading to the formation of a contract. In
an employment dispute, social networking material is generally only
relevant if it materially affects an individual’s ability to perform their job.
In many types of disputes, such as family law or employment law, only