A Nova Scotia court judge recently required a plaintiff to relinquish his hard drive for a “metadata” analysis which would show the active use of his computer (Laushway v. Messervey, 2013 NSSC 47). Metadata (or metacontent) refers to information about one or more aspects of the data, such as:
- Time and date of creation
- Creator or author
- Location on a network where the data was created, updated and accessed
- Descriptive information about the data, etc.
In this case, the plaintiff, Laushway was injured in a car accident.Before the accident, he earned income through a multi-level marketing system on the internet. He claimed that after the accident, the amount of time he could devote to his online operations was greatly reduced since he couldn’t sit at his computer for very long. The defendant asked that Laushway’s hard drive be turned over so it could obtain information about his hours of usage through metadata analysis.
Laushway protested that this would be an invasion of his privacy since the data compiled could reveal his private emails, client information, correspondence or a list of websites visited. He also pointed out that others used his computer on occasion so the result would be unreliable.
The Judge quickly found that the information requested was relevant as the amount of time Laushway could use his computer was directly related to his claims for lost income and general damages. In balancing the privacy concerns, the Judge concluded that what was sought was usage pattern as opposed to specific documents or website analysis. The data analysis could also filter out other users. Ultimately, the order was granted.
Not every case will justify the expense of metadata analysis but Nova Scotia Civil Procedure Rules do authorize a Judge to order disclosure of electronic information, which includes metadata. In the right case, a computer hard-drive and its data about data can provide a powerful litigation tool.