Hernandez v. Purcell

Hernandez v. Purcell

Raw psychological test data is relevant and presumptively discoverable; the Board of Examiners failed to rebut the presumption by adducing evidence of a 'real risk' that the data would be used for an improper collateral purpose beyond the protection afforded by the implied undertaking and the Rules; therefore full disclosure, including raw testing data, is ordered under Rules 14.12 and 55.08, with the implied undertaking remaining operative.

Citation
2013 NSSC 303
Parties
Plaintiff/respondent: Joanne Hernandez; Defendant/applicant: Danielle Lynn Purcell; Plaintiff/respondent: Christina Phyllis Carroll; Defendant/applicant: Parks and Armour Transport; Intervener: Board of Examiners in Psychology
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
25 September 2013
Procedural Posture
Personal Injury Disclosure Motion / Pre Trial Motions for Production of Expert Files and Raw Psychological Test Data
Outcome
Motions granted
Legal Topics
Disclosure of Expert Materials, Implied Undertaking, Psychological Test Data, Court Production Orders, Confidentiality and Sealing
Source Language
English
Civil Procedure Evidence Personal Injury Professional Regulation Privacy/confidentiality Disclosure of Expert Materials Implied Undertaking Psychological Test Data +2 more

Case Brief

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Parties

Joanne Hernandez

Plaintiff/respondent

Danielle Lynn Purcell

Defendant/applicant

Christina Phyllis Carroll

Plaintiff/respondent

Parks and Armour Transport

Defendant/applicant

Board of Examiners in Psychology

Intervener

Procedural Posture

Personal Injury Disclosure Motion / Pre Trial Motions for Production of Expert Files and Raw Psychological Test Data

Legal Issues

  1. 1 Whether raw psychological test data held by treating psychologists/neuropsychologists is discoverable
  2. 2 Whether the implied undertaking rule provides adequate protection for disclosed raw test data or whether the court should impose additional conditions
  3. 3 Application and interplay of Civil Procedure Rules 14.12, 14.03, 55.08 (expert disclosure)

Ratio Decidendi

Raw psychological test data is relevant and presumptively discoverable; the Board of Examiners failed to rebut the presumption by adducing evidence of a 'real risk' that the data would be used for an improper collateral purpose beyond the protection afforded by the implied undertaking and the Rules; therefore full disclosure, including raw testing data, is ordered under Rules 14.12 and 55.08, with the implied undertaking remaining operative.

Court Disposition

Motions granted

Orders

  • The Defendants' motions for production are granted and the entire file materials of Mr. Farley MacLeod and Dr. Erica Baker, including raw testing data, are to be released.
  • The implied undertaking applies to the disclosed materials; no additional conditions on release were ordered.