Civil Procedure Rules of Nova Scotia  
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Part 5 - Disclosure and Discovery

Rule  16 - Disclosure of Electronic Information

Scope of Rule 16
16.01 (1) This Rule prescribes duties for preservation of relevant electronic information, which may be expanded or limited by agreement or order.
  (2) This Rule also prescribes duties of disclosure of relevant electronic information and provides for fulfilling those duties in one of the following ways:
   
(a)
first, an agreement made by the parties;
   
(b)
second, to the extent that an agreement is not made, disclosure according to default Rules;
   
(c)
third, if no agreement can be made and the default rules cannot be complied with, directions of a judge under Rule 16.14.
  (3) A party must preserve and disclose electronic information in the control of the party, in accordance with this Rule.
       
Duty to preserve electronic information
16.02 (1) This Rule 16.02 provides for preservation of relevant electronic information after a proceeding is started, and it supplements the obligations established by law to preserve evidence before or after a proceeding is started.
  (2) A party who becomes aware that a proceeding is to be defended or contested, must take measures to preserve relevant electronic information that is of one of the following kinds:
   
(a)
it is readily identifiable in a computer, or on a storage medium, the party actually possesses;
   
(b)
it is accessible by the party to the exclusion of another party, such as information in a database the party accesses by password on a computer the party does not actually possess.
  (3) Electronic information that is within any of the following descriptions is readily identifiable:
   
(a)
it was created, or regularly accessed, by a party during events related to a claim, defence, or ground, and if the information is still accessible;
   
(b)
the party finds it while doing anything in connection with the proceeding, such as preparing the party’s own case or defence;
   
(c)
it is stored under a relevant name;
   
(d)
it is capable of being found by performing thorough keyword searches.
  (4) The party must exactly copy the relevant electronic information required to be preserved, unless the parties agree or a judge orders otherwise (see the definition of “exactly copy” in Rule 14.02, of Rule 14 - Disclosure and Discovery in General).
  (5) Rules 16.02(1) to (4) do not require a party to freeze a database or file that changes significantly and rapidly in ordinary use, such as a file for inventory control.
  (6) A party may demand that a party who controls a database preserve relevant information in the database, and the party who receives the demand must immediately do one of the following:
   
(a)
preserve the information from being overwritten or otherwise altered;
   
(b)
explain in writing why the party cannot comply with the demand.
  (7) A party may make a motion for an order requiring another party to preserve information in a database or a file that changes significantly and rapidly in ordinary use.
  (8) A judge may make an order for preservation of relevant electronic information, in accordance with Rule 42 - Preservation Order.
       
Duty to disclose electronic information
16.03 (1) A party to a defended action or a contested application must do each of the following:
   
(a)
make diligent efforts to become informed about relevant electronic information the party controls, or once controlled;
   
(b)
search for relevant electronic information the party can access to the exclusion of another party, sort the information, and either disclose it or claim it is privileged;
   
(c)
acquire and disclose relevant electronic information the party controls but can access only through a custodian who is not an employee or an officer of the party.
  (2) A party must also disclose all of the following about relevant electronic information:
   
(a)
a description of a computer or storage medium that the party once actually possessed but no longer actually possesses and that may contain relevant electronic information;
   
(b)
information about any deletion or destruction of relevant electronic information of which the party is aware;
   
(c)
a claim that electronic information is subject to a privilege in favour of the party or another person, to the extent it is possible to inform another party without infringing the privilege.
  (3) A party must disclose relevant electronic information that has ceased to be privileged or is newly created, discovered, or acquired.
       
Agreement about preservation
16.04   The parties may, by agreement, and a judge may, by directions under Rule 16.14, expand or limit a party’s duty to preserve electronic information.
       
Agreement for disclosure
16.05 (1) Parties may make an agreement for disclosure of relevant electronic information, and a term of the agreement prevails over an inconsistent provision of Rule 15 - Disclosure of Documents, or this Rule 16.
  (2) A judge may make an order to enforce a term in an agreement for disclosure of electronic information.
  (3) Breach of a term in an agreement for disclosure of electronic information is the same as breach of a Rule for the purpose of Rule 88 - Abuse of Process.
       
Rules for disclosure in default of agreement
16.06 (1) A party to either of the following proceedings must make disclosure of relevant electronic information in accordance with the following default Rules, to the extent there is no agreement on a subject pertaining to the default Rules:
   
(a)
a defended action, in accordance with Rules 16.07 to 16.11 and Rule 16.13;
   
(b)
a contested application, in accordance with Rules 16.12 and 16.13.
  (2) A party who does not have an agreement covering a subject provided for in the default Rules and determines they cannot fulfill a default duty, or cannot comply with an applicable default Rule, must immediately notify each other party of the inability and reason for it.
  (3) All parties must negotiate in good faith for an agreement under Rule 16.05 as soon as possible after being notified of an inability to fulfill a default duty or comply with a default Rule.
  (4) If agreement is not reached in a reasonable time, the party who cannot fulfill a default duty, or comply with an applicable default Rule, must apply for directions under Rule 16.14.
       
Time for disclosure in an action (default provision)
16.07   A party to a defended action must disclose relevant electronic information no more than forty-five days after the day pleadings close.
       
Sufficient search (default provision)
16.08 (1) A party who does all of the following performs a sufficient search for relevant electronic information:
   
(a)
identifies computers and storage media the party actually possesses that are likely to contain relevant electronic information;
   
(b)
identifies other sources that are likely to contain relevant electronic information, such as a source the party accesses to the exclusion of another party on computers the party does not actually possess;
   
(c)
performs all reasonable searches, including thorough keyword searches, to find relevant electronic information in the computers, storage media, or other sources;
   
(d)
identifies persons who hold, or are likely to hold, relevant electronic information the party controls;
   
(e)
takes reasonable steps to acquire information from a person identified as holding information the party controls.
  (2) A party performs a sufficient search without searching free space for file fragments, attempting to restore and search deleted files, or searching a backup file or tape containing only duplicate information.
       
Disclosure in an action (default provision)
16.09 (1) A party to a defended action must deliver to each other party an affidavit disclosing relevant electronic information that fulfills the party’s duties to make disclosure in the time allowed by Rule 16.07.
  (2) The affidavit must contain the standard heading, be entitled “Affidavit Disclosing Electronic Information (Individual)” or “Affidavit Disclosing Electronic Information (Corporation)”, and be sworn or affirmed by an individual party, the litigation guardian of an individual party, or an officer or employee of a corporate party.
  (3) The person making the affidavit must swear to, or affirm, all of the following:
   
(a)
the information in an attached certificate of advice or understanding about disclosure duties under this Rule 16 and Rule 15 - Disclosure of Documents, is true;
   
(b)
the person has searched, or has supervised a search, for relevant electronic information in computers and storage media the party actually possesses and in sources exclusively accessed by the party;
   
(c)
the person has made diligent efforts to become informed about relevant electronic information that is in the control of, but not held by, the party and the person has acquired the information except as disclosed in the affidavits;
   
(d)
an attached Schedule A is provided in print and in a readily exchangeable electronic format, describing each discrete item of electronic information according to identification number or letters, date of creation, type of communication or other information, author or author and organization, and recipient;
   
(e)
the person has arranged for the electronic information referred to in Schedule A to be prepared in a readily exchangeable electronic format, organized in a way that corresponds with Schedule A, and delivered to each other party;
   
(f)
an attached Schedule B provides the date of retention of counsel and claims privilege over communications with counsel, unless the party waives the privilege, and provides information on all claims that a communication, other than a communication with counsel, is privileged in favour of the party or another person;
   
(g)
an attached Schedule C provides information about relevant electronic information in the party’s control but which the party has not yet found or acquired, and an undertaking to act diligently to find or acquire the information;
   
(h)
an attached Schedule D describes relevant electronic information once, but no longer, in the control of the party and provides details about how the party ceased to have control of it;
   
(i)
to the best of the person’s knowledge, the party has never had control of relevant electronic information except as disclosed in the affidavit;
   
(j)
disclosure of documents is the subject of another affidavit.
  (4) The certificate of advice or understanding attached to the affidavit must be the same as the certificate attached to an affidavit of documents.
  (5) The affidavit may be in Form 16.09A for an individual party, or Form 16.09B for a corporate party.
       
Supplementary affidavit of electronic information in an action (default provision)
16.10   A party who delivers an affidavit disclosing electronic information must, immediately on becoming aware of any of the following, deliver to each other party a supplementary affidavit disclosing further electronic information:
   
(a)
some relevant electronic information in the control of the party is not covered by the affidavit disclosing electronic information;
   
(b)
further relevant electronic information is found or acquired;
   
(c)
relevant electronic information claimed to be privileged is no longer claimed to be privileged.
       
Copy of electronic information in an action (default provision)
16.11   A party who delivers an affidavit, or supplemental affidavit, disclosing electronic information must, at the same time, deliver to each other party a copy of the electronic information referred to in Schedule A of the affidavit, or in the supplementary affidavit.
       
Making disclosure in an application (default provision)
16.12 (1) A party to an application who becomes aware that the application is contested must, as soon as possible, deliver to each other party copies of electronic information required to be disclosed by Rule 16.03.
  (2) A party to an application who is requested by another party to provide a description of relevant electronic information must, as soon as possible, deliver a description to the requesting party that conforms with the requirements for Schedule A of an affidavit disclosing electronic information.
  (3) The disclosing party must answer questions asked by another party that will inform the other party about any of the following subjects:
   
(a)
a claim for privilege, to the extent information can be given without infringing the privilege;
   
(b)
measures the disclosing party has taken to preserve, or acquire, relevant electronic information in the control of the party;
   
(c)
details of the searches made by the disclosing party;
   
(d)
details about a source of electronic information that may be used to produce new, relevant information;
   
(e)
any information that could reasonably lead to the location and preservation of relevant electronic information that has not been acquired.
  (4) The inquiring party may require that the questions and answers be put in writing, recorded, or asked and answered at a discovery.
  (5) A party to an application must copy relevant electronic information immediately on becoming aware that the information has ceased to be privileged, is newly created, discovered, or acquired, or was not disclosed when it should have been disclosed, and deliver a copy to each other party.
       
Deletion or destruction of electronic information
16.13 (1) Deliberate or reckless deletion of relevant electronic information, expunging deleted information, or destruction of anything containing relevant electronic information after a proceeding is started may be dealt with under Rule 88 - Abuse of Process.
  (2) Failure to comply with an order directing preservation of electronic information may be dealt with under Rule 89 - Contempt.
       
Directions for disclosure
16.14 (1) A judge may give directions for disclosure of relevant electronic information, and the directions prevail over other provisions in this Rule 16.
  (2) The default Rules are not a guide for directions.
  (3) A judge may limit preservation or disclosure in an action only to the extent the presumption in Rule 14.08, of Rule 14 - Disclosure and Discovery in General, is rebutted.
       
When loss of electronic information may be abuse
16.15 (1) A party who deliberately or recklessly does any of the following may be dealt with under Rule 88 - Abuse of Process:
   
(a)
deletes relevant electronic information;
   
(b)
expunges deleted, relevant, electronic information;
   
(c)
destroys a thing that contains relevant electronic information.
  (2) A party who acts in good faith and who loses relevant electronic information as a result of the routine operation of a computer or database does not commit an abuse of process.
       

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