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Discovery of Documents and the Social Network

By: David Himelfarb

Discovery of Documents & Social Networks

Canadians are increasingly embracing online social networking. One of the more popular networking sites, Facebook, has over 600 million active users with at least 15.5 million of those members being Canadian. Users create personal profiles, exchange messages, post pictures and videos, join interest groups, and can comment on friends’ content. As Facebook increases in popularity amongst the Canadian public, issues have arisen with respect to the use of online material in the civil litigation process.

Rule 30.02 of the Rules of Civil Procedure states that:

(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

(2) Every document relating to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document.

Note that a “document” is defined as “a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data in electronic form.”

In Leduc v. Roman (2009), 308 D.L.R. (4th) 353, the Ontario Superior Court of Justice provided some useful guidelines on when litigants may be required to provide access to materials placed on their Facebook profile. In Leduc, the plaintiff was involved in a motor vehicle accident and claimed that as a result of the defendant’s negligent driving, and subsequent injuries, his enjoyment of life had been lessened. At the plaintiff’s examination for discovery, no questions were asked about whether he maintained an active Facebook profile. It was only when the plaintiff underwent a defence medical examination that he revealed he had “a lot on Facebook.” As expected, the defence moved for an Order for preservation of all information on the plaintiff’s Facebook profile and production of all its contents.

At the motion, the master refused to order production of the contents of the plaintiff’s Facebook profile. It was held that the defendant did not discharge its burden to prove that the contents were relevant the decision continued:

“I agree with the sentiments expressed in paragraph 30 of the Plaintiff's factum with respect to the precedent that would be created by allowing a Defendant to gain access to any Plaintiff's Facebook merely by proving its existence. Same would be true of a photo album or a diary. The Defendant had an opportunity to ask at discovery whether the Plaintiff had photos — either a hard album or electronically that are demonstrative of his lifestyle but I have no evidence such questions were asked.

In my view speculation of what may be on the Plaintiff's site or what is on a 'typical' site is insufficient. Surely the one head shot produced on the one public page is neither relevant nor indicative of what may be on the site.

In my view…the request by the Defendant herein is clearly a fishing expedition. Even if I were to consider a production order, the Defendant's request for the entire site is far too broad and has not been restricted to specified relevant items.”

However, on appeal, the court reversed the master’s decision stating that an inference can be drawn from the nature of the Facebook service about the likely existence of relevant documents. Moreover, that the defendant should be allowed to cross-examine the plaintiff on the supplementary affidavit of documents he delivered to determine what, if any, relevant content was posted on Facebook. The court held that:

“To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

In summary, Leduc would stand for the proposition that while the mere existence of a Facebook site does not entitle a party to gain access to all its contents, in the interest of disclosure and trial fairness, parties must be allowed to determine whether or not relevant content is present. If the material is determined to be relevant, it ought to be produced.

Parties involved in personal injury litigation can expect that content uploaded to their Facebook profile before and after an accident may be produced for discovery. Accordingly, discretion should be exercised with respect to messages, photos, and videos uploaded to Facebook following an accident.

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