Alex Cameron and Nicole Melanson on "Obtaining Electronic Evidence from Non-Parties" (Advocates’ Quarterly)


Alex Cameron and Nicole Melanson (Fasken Martin DuMoulin LLP) have published “Obtaining Electronic Evidence From Non-Parties” in (2010) 36 Adv. Q. 470-508 (subscription required). Here is an excerpt:

“Counsel and parties have long looked to non-parties as a potential source of relevant information for litigation. The equitable bill of discovery, for example, is a remedy of ‘ancient origin’ that developed in tandem with litigation discovery rules in the courts of equity. Courts have historically shown a willingness to order a wide variety of non-parties to produce information in litigation, including banks, medical professionals, and others.

The information has given rise to a host of new non-parties that may hold relevant information in a given case, especially electronically stored information (ESI). Twitter, Facebook, Myspace, Google, YouTube, Craigslist and many others can be important sources of ESI in litigation. Courts frequently order such non-parties to produce ESI, particularly in circumstances where a plaintiff requires the assistance of the non-party to identify an anonymous defendant or an intended defendant. These cases highlight the importance of getting non-party production right. If an applicant is unsuccessful in a motion to compel a non-party to identify an anonymous defendant, then the applicant may be denied to ability to pursue its claim.”

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