2010 August 16

Warman v National Post Co, 2010 ONSC 3670

The Ontario Superior Court of Justice (Master) ruled on an application by the defendant Levant, for (1) an order for production of certain categories of documents and (2) a mirror image of the hard drive of the plaintiff’s personal computer in order to obtain all relevant documents and information from the plaintiff’s personal computer or, in the alternative, (3) an order requiring to turn the hard drive or a mirror image of the hard drive over to a mutually agreeable expert who will examine it and produce all relevant documentation and information, including meta data, to all parties. The Court noted that in this “Simplified Procedure” action in which the plaintiff seeks an apology and damages of no more than $50,000, the “parties’ cases could hardly be more diametrically opposed”: (a) the plaintiff “asserts that someone adverse to his interests set about to make a hateful internet posting and to take appropriate steps to make it appear that the posting had been generated from an Internet Protocol (“IP”) address belonging to [the plaintiff];” (b) the defendant Levant asserts in a 36 page statement of defence containing 145 paragraphs that the plaintiff “generated the subject posting and that if a full analysis of the hard drive of [the plaintiff’s] computer is undertaken, it may well be that proof of Mr. Levant’s theory will be found.”

Taking into account the new requirement under the Ontario Rules of Court for proportionality, the Court concluded that a forensic examination of some of the available electronic data was justified but that such an examination should be: (i) restricted to very limited areas, (ii) made on a mirror image of the plaintiff’s hard drive, and (iii) made by an independent, mutually acceptable expert. The Court directed, inter alia, that the independent computer expert: (a) conduct searches for certain specified alleged personas and related metadata concerning these terms or meaningful fragments of them found on the hard drive, and ensure that appropriate searches are made with respect to all specified keywords; and (b) seek all documents and information showing the plaintiff’s IP address at relevant times. The Court stated: “Unless and until we know that the [independent computer expert] finds on the hard drive (if anything), this alleged fishing expedition may turn out to have been a wild goose chase.”