CASE COMMENT: Hernandez v. Purcell, 2013 NSSC 303

This recent decision of the Nova Scotia Supreme Court provided timely guidance to the Board of Examiners in Psychology as well as to litigants in two matters involving a similar issue of disclosure of raw psychological test data. The two personal injury cases both involved allegations of psychological sequelae and the Defendants had requested provision of raw test data as part of the Plaintiff’s disclosure.

The two psychologists responded to the disclosure requests by supplying the raw data to Plaintiff counsel in a sealed envelope, with a request that the data only be reviewed by a similarly qualified professional. This was, in their view, a step made necessary by the Standards of Practice and Code of Ethics to which they must adhere. The Board of Examiners likewise supported this view, offering several reasons:a. Underlying data would be subject to misinterpretation by persons untrained in the interpretation of that data;

b. Test materials is proprietary and subject to copyright. Accordingly, the interests of the publishers must be considered; and

c. Dissemination of information about testing protocols may impact of (sic) integrity of the test model, a result which could undermine psychological services and is, therefore, contrary to the public interest.

Justice Bourgeois rejected this argument on the basis that the implied undertaking rule, which generally protects information disclosed in the litigation context from being used for a collateral purpose, is sufficient to protect against these potential problems. In doing so, she cited with approval the earlier decision of Justice Hood in the case of TransCanada Pipelines Ltd. v. Nova Scotia (Attorney General) (1999), 179 N.S.R. (2d) 364 and adopted the test from that case:

“In my view, the general rule that there is an implied undertaking is sufficient unless there is a “real risk” that documents would be used for a collateral purpose.
“There is no evidence before me that these documents deal with trade secrets or manufacturing formulae or processes …
Even in cases where there are “special circumstances such as patent processes, trade mark rights, sensitive or personal information, or in highly competitive industries” (Wirth), there must be “real risk”.

“I conclude that there is a two-step test which must be met. The first is to show that the nature of the documents is such that it is necessary to consider conditions on disclosure, and second , to show that there is a “real risk” of the document being used for an improper or collateral purpose by a particular person or persons or a particular
group.“

The Court was not prepared to find that a “real risk” existed in the circumstances of the two cases at bar, and allowed the disclosure to proceed without further restriction. This decision does not close the door on future cases where evidence of a “real risk” of improper use may be available, but it does provide welcome guidance to both lawyers and psychologists.