Obtaining Evidence: A Challenge in the Internet Age

In litigation, evidence is essential; in the online era, much of that evidence is internet-based. But online evidence can be difficult to bring before the court in British Columbia.

Many internet companies are headquartered and house their data on servers in the United States and other countries, introducing complex questions of jurisdiction when that data becomes evidence. The rewards of grappling with these questions can be enormous, as browsing histories, emails, IP addresses, metadata or deleted content can be crucial to your case.

Online data can help prove crucial facts, such as an individual’s identity, their knowledge at a point in time, or even the presence of actionable damages in all types of lawsuits, including defamation, fraud, and commercial disputes. Unsurprisingly, then, such evidence is increasingly a critical piece of modern litigation strategy. But admitting it at trial often involves a number of procedural hurdles.

Despite the 21st century’s increasing interconnectivity, obtaining evidence in B.C. from foreign jurisdictions remains resolutely old-fashioned. In Equustek Solutions Inc. v. Jack, Madam Justice Fenlon aptly noted that the internet frustrated traditional territorial jurisdiction of the courts, and that the courts must adapt to the changing nature of human commerce and information interchange in the “borderless electronic web of the internet”. Unfortunately, the B.C. Rules of Court have not caught up.

When a witness (individual or corporate) is located in a foreign jurisdiction, will not attend trial willingly, and cannot be compelled to attend because of the court’s limited jurisdiction, but their evidence is necessary to a claim or defence, litigants can apply to the court for what are known as “letters of request” or “letters rogatory”. The court can issue a letter of request to the foreign court, seeking judicial assistance and requesting that the foreign court compel the witness to attend the deposition.

The letter of request is then given effect by counsel in the foreign jurisdiction where the witness resides. The procedure for giving effect to the B.C. order varies by jurisdiction. In California, for example (where Google and Facebook are headquartered), the Code of Civil Procedure allows a lawyer to issue a “foreign subpoena” without resorting to the court. In other jurisdictions, such as Washington (where Microsoft does business) and Arizona (the home of GoDaddy), an application to the state court may be necessary.

The process is unwieldy, and involves sending letters of request to the Undersecretary of State for External Affairs of Canada in Ottawa, to be forwarded through diplomatic channels, and then to the foreign court for assistance, aided by counsel. The evidence then meanders back to the parties through the same channels, and the process could take years. The first of many problems with this clunky procedure is this: The Undersecretary of State for External Affairs is no longer a position in Canada’s federal government. (Cabinet positions may change, but some rules stay the same.)

Luckily, more expeditious channels exist. However, coordinating a process consistent with B.C. law, international law and the law in the foreign jurisdiction requires strategy and finesse. It also depends on the kind of evidence to be admitted and the jurisdiction where it is to be found.

B.C.’s process for obtaining foreign evidence is also out of step with many other jurisdictions, which have turned to Mutual Legal Assistance Treaties (MLATs) instead. These treaties seek to replace the common law’s reliance on letters of request with a more efficient and reliable process. However, for complex constitutional reasons, Canada’s federal structure precludes it from being a signatory to MLATs.

While the specific steps involved in obtaining letters of request may change in the coming years (one wonders, for instance, how long a non-existent civil servant can play a starring role), the overall process for obtaining foreign evidence is likely to remain complex in Canada due to our federal structure.

Combine that stubborn fact with our society’s ongoing online migration, and it is more important than ever that litigants have an effective strategy for identifying and obtaining foreign evidence where necessary.

When your litigation may turn on evidence of online activities, turn to counsel with the expertise to get that evidence before the courts.

For more information on civil litigation and obtaining foreign evidence, please contact Claire.

For more information, please contact: