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No hiding place in cyberspace: electronic discovery from non-parties

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By David Crerar and Ryan Purita.
 
An anonymous posting on an Internet website defames and destroys a professional reputation. An anonymous entry on an Internet chat-room reveals confidential pricing information. A series of anonymous e-mails threatens physical harm to the recipient. All of these events pose tangible threats to the personal and financial security of the target person or company; all demand immediate remedy; all found legal causes of action. Happily, our robust and adaptive legal systems provides means of obtaining evidence about the identity of the sender, despite the anonymous source and technical complexities, from non-party sources,
 
This article will strive to provide a practical overview of the means to obtain orders for electronic discovery from non-parties such as Internet service providers (“ISPs”) and website hosts. It will not wade into the valid and vigorous debate about whether the law should recognize and preserve the Internet as a sacred sphere of anonymity different from more traditional modes of communication. For the purposes of this article, we note that Canadian courts have not been dazzled by the vast and novel realm of the Internet, but rather have successfully adopted common law principles, as applied to traditional communications, to the new electronic realm. Examples can be seen in recent appellate decisions, on jurisdiction and limitation periods with respect to Internet communication, that neither depart significantly from the existing common law principles nor treat the Internet as sui generis.
 

This article starts with a brief technical overview of the form and creation of electronic evidence held by non-party custodians, It then reviews the steps for obtaining the evidence on which to base an application for a non-party to disclose electronic evidence. The article then sets out the communications and civil procedure to obtain non-party discovery and reviews the sparse case law for such discovery. Continuing with the practical logistics of such an application, the article then discusses the typical order for non-party discovery. It then sets out some pitfalls and roadblocks impeding non-party discovery, including what effect citywide wireless and Wi-Fi communications will have on the prospects of plaintiffs seeking redress for civil wrongs based on electronic communications. Finally, it suggests some possible means of circumventing these roadblocks.

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