The Second Opinion: Examination on Discovery of Computers- No Fishing Allowed

In Desmarteau v. Ontario Lottery and Gaming Corporation 2013 QCCA 2090, the Quebec Court of Appeal established restrictive guidelines for the examination on discovery of personal computers, applying by analogy the rules governing Anton Piller orders.

In Desmarteau, the defendant sought and obtained in first instance, an order to permit its expert to examine the personal computer of the plaintiff to identify information relevant to the litigation. The first instance order instructed the expert to exclude matters covered by solicitor-client privilege. The Québec Court of Appeal reversed the first instance judgement and rejected the defendant’s request to examine the computer because the request was premature, without sufficient justification and without adequate restrictions as to the examination.

The Québec Court of Appeal indicated that any such order must specify the identity and qualifications of the person who will examine the computer contents, the precise description of what is sought preferably using keywords, an evaluation of the cost, when the examination will occur and its duration, where it will take place, how the examination will be conducted, who will be present for the examination and who will receive the report resulting from the examination. In the absence of a judicial precedent, the Court relied upon the framework established for Anton Piller orders. The Court recognized that any such examination of a computer during discovery before the filing of the defense is exceptional and raises significant issues concerning privacy and the solicitor-client privilege. The Québec Court of Appeal found that the request by the defendant to examine a computer and order issued granting the request did not provide an adequately restricted framework to permit the examination of the plaintiff’s computer.

The Desmarteau decision provides extensive guidelines as to the examination of computers before a defense is filed. It also indicates that any such examination should rarely be permitted at that time given uncertainty as to the issues raised by the litigation.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.

Computer discovery before defense Evidence privacy procedure solicitor client privilege



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