Non-disclosure has been described as “the cancer of matrimonial property litigation.” It discourages settlement, increases the time and expense of litigation, and may deprive children of proper support. The prolonged stress of unnecessary battle to obtain disclosure may lead a weary and drained former spouse simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a suspicion that justice was not done.
Opportunities for abuse arise not only on the “disclosing” side but also on the “requesting” side. Overly broad requests for document production are used as a weapon to wear the other side down emotionally and financially. In a recent high conflict family law case, Etemadi v. Maali, 2021 BCSC 1003 the BC Court refused to permit the spouses to use dueling applications for document production for such purposes.
Dueling applications for document production
While both spouses in Etemadi v. Maali brought applications for document production, today’s post will focus on the husband’s application for production of the wife’s computer hard drive. Master Keighley refused to order wholesale production of her computer hard drive, calling it a classic “fishing expedition.” The husband wished to leaf through the digital files on his former wife’s hard drive to determine whether it contained any relevant material, but that is not a mode of disclosure contemplated by the Supreme Court Family Rules.
High conflict BC family law proceedings
The 42-year-old husband, Mr. Etemadi, and 41-year-old wife, Ms. Maali, married on February 28, 2006, in Tehran, Iran. Mr. Etemadi and his family were wealthy, and Ms. Maali alleged that they shared a very luxurious lifestyle during their marriage. They moved to Vancouver on December 16, 2007, and thereafter lived in or owned properties in Vancouver, West Vancouver, Tehran, and Malaysia. The spouses separated on several occasions and finally parted ways on September 1, 2017. BC family law proceedings were commenced by Mr. Etemadi less than a week later.
Husband’s application for production of wife’s computer hard drive
Mr. Etemadi asked the Court for an order requiring Ms. Maali to forthwith produce a computer hard drive in her possession. She used the hard drive at least up to 2013 to back up their personal computers. Thereafter, she continued to use the hard drive for her own purposes, and she retained possession of it after they finally separated in 2016. She said that the hard drive contained documents relevant to the family litigation (some of which had already been produced), but also contained documents covered by solicitor/client privilege as well as personal correspondence, pictures, and videos. Files numbered in the 1000s. Ms. Maali argued that all relevant, non-privileged documents had been disclosed from the hard drive and that granting the order sought would allow her former husband to search through her hard drive as if it were a filing cabinet, making his own assessments as to what is relevant and what is not.
Is a hard drive a “document”?
“Document” is defined in Rule 1(1) of the Supreme Court Family Rules. It “has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.” While the definition is broad, the Court in Etemadi held that a computer hard drive is not a document as contemplated by the Supreme Court Family Rules. Rather, a hard drive is the digital equivalent of a bookshelf, a filing cabinet, or a documentary repository. The Court also noted that a hard drive contains more than just the actual document files. It also contains the history of web sites visited and metadata (information as the time and date upon which a file is created modified or deleted, who was logged in at the time the data was generated, and how long the file was open).
Court refuses to order production of hard drive
While the Court may order the production of relevant documents stored in a hard drive, the Rules do not authorize an unrestricted search of a digital storage device. The husband’s application did not reference any specific document which may be relevant to the proceedings and which had not already been listed in the wife’s list of documents. Essentially, what the husband was seeking was access to a place in which his wife might keep documents to see if there is anything “relating to any matter in question.” The Court does not have the power to make such an order, which is really an authorization to search.
Bottom line on document production in BC family law proceedings
Mistrust is a common theme in BC family law proceedings, but the threshold for document disclosure is higher than that. While the Court may order the production of relevant documents stored in a hard drive, the Rules do not authorize an unrestricted search of a digital storage device. A party must specify what document or class of documents they are requesting and tie it to an issue in the proceedings.