More on Document Disclosure: Hard Drives, Phone and Banking Records
(Note: I’m informed that the case discussed in the below post is under appeal. When the appellate decision comes to my attention I will update this post)
As previously discussed, one of the areas being worked out by the BC Supreme Court is the extent of document production obligations in personal injury lawsuits under the New Rules of Court. Further reasons for judgement addressing this subject were recently brought to my attention.
In the recent (unreported) case of Shackelford v. Sweeney the Plaintiff was injured in a 2009 motor vehicle collision. He alleged serious injuries including a head injury with resulting cognitive difficulties. The Plaintiff was a successful self-employed recruiter and his claim included potentially significant damages for diminished earning capacity.
In the course of the lawsuit ICBC applied for various records supposedly to investigate the income loss claim including production of the Plaintiff’s computer hard-drive, phone records and banking records. The application was partially successful with Master Taylor providing the following reasons addressing these requests:
[7] In relation to the cellphone records, the plaintiff gave evidence at his examination for discovery that he conducted most of his business over the telephone or the Internet, and he rarely met with people, and therefore it is suggested that the cell phone records relating to his business are probative. I agree that they can be probative, but I do not believe that the actual phone numbers themselves would be probative in any particular method or way. What is probative is how much the plaintiff used his phone on a daily or weekly basis to conduct his business
[8] Accordingly, I am going to order that the cellphone records that relate to his business, from January 1, 2007, to the present date, be produced, but in all circumstances every phone number but the area code is to be redacted….
[13] The Defendants also seek an order that the plaintiff produce the hard drive from the laptop he was using when he was operating (his recruiting business)…
[17] …As there is an ongoing obligation by the Plaintiff to produce all business records in relation to this claim, I say that the obligation continues with respect to the hard drive that exists, and that the plaintiff has the obligation to examine the hard drive himself and/or with counsel, and extract any of his business records from there and provide them to the defendants.
[18] If the Plaintiff requires the services of a technician to assist in that regard, then the cost of that will be borne by the defendants. Once the business records have been extracted and redacted for privacy concerns, those documents will be henceforth provided to the defendants within 14 days thereafter…
[21] I think that only leaves bank statements relating to business income. I think the plaintiff has a positive obligation to provide some information with respect to his income, showing his income being deposited into his bank account. Where that in the bank statements shows, it should be left unredacted, but where it shows anything related to his wife or private unrelated business purchases , those may also be redacted.
This case is worth reviewing in full for other matters such as a declined request for production of the Plaintiff’s passport and client names.
At this time this case is unreported however, as always, I’m happy to e-mail a copy to anyone who contacts me and requests the reasons for judgement.