Social Media: opportunities and challenges

  • Subtitle: Case law remarkably consistent across jurisdictions in characterizing social networking information as potentially relevant in litigation
Written by  James D. Cuming and Craig Gillespie Posted Date: October 15, 2012
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Standard_photos_cuming_gillespie.jpgThe increasing use of social media presents unique opportunities and challenges for lawyers and judges alike in litigation. Social networking sites such as Facebook have become a tool for gleaning information about a plaintiff’s circumstances. In an action in which the claimant’s physical and mental ability to carry out tasks of daily living, to work, and to enjoy leisure activities are in issue, the information gained from user-posted photos and comments can be remarkable.

On Facebook, a user may choose to make her profile information public, but more commonly will restrict the profile information to Facebook “friends.” The challenge in document production arises when a party’s Facebook profile is private.

Plaintiffs opposing production typically raise privacy as their chief concern. The courts have rejected the privacy argument on the grounds the plaintiff has already shared the information or images with, typically, several hundred “friends”: see Frangione v. Verdongen and Re McDonnell.

The first case to deal squarely with pre-hearing production of the contents of a Facebook profile was the Ontario Superior Court in 2007’s Murphy v. Perger. The plaintiff brought an action for general damages for pain and suffering and loss of enjoyment of life resulting from a motor vehicle accident. The defendant sought production of photos of the plaintiff posted to her private Facebook profile. The photos were found to be documents within the meaning of the discovery rule and, to the extent they related to matters in issue, their existence had to be disclosed by the plaintiff. The plaintiff was ordered to provide the defence with copies of her Facebook profile.

Leduc v. Roman took a more cautious approach in ordering production of the plaintiff’s Facebook profile. The plaintiff brought an action for injuries arising from a motor vehicle accident. He claimed his enjoyment of life was diminished and he was no longer able to play sports. The plaintiff did not list his Facebook profile in his affidavit of documents and the defendant discovered it in a passing reference made during an expert medical examination. The plaintiff’s Facebook profile was entirely private, yet the plaintiff was not permitted to hide behind these privacy controls. In 2009, the judge ordered the defence be given the opportunity to cross-examine the plaintiff about the kind of content posted on his Facebook profile to determine whether that content was relevant to the material issues in the action.

In another 2009 case, Wice v. Dominion of Canada, the plaintiff’s ability to function was in issue. The defendant had produced evidence demonstrating there were relevant photographs of the plaintiff participating in social activities posted on his Facebook profile. This fact, coupled with the inference to be drawn from the nature of Facebook that other relevant documents were likely to be included in the plaintiff’s profile, was enough to support an order for a further and better Affidavit of Documents. Justice Cary Boswell ordered the plaintiff to include in his affidavit relevant documents contained in his Facebook and other similar accounts. He was also ordered to preserve any and all information and documentation in his Facebook and similar accounts for the duration of the litigation.

In 2010’s Frangione, the plaintiff, in opposing production, argued there was sufficient medical evidence to counteract any need for his own documents. Master Lou Ann Pope was hesitant to exclude an entire body of evidence such as that found on a plaintiff’s Facebook profile merely because there was another more credible body of evidence such as medical reports. The master concluded at the discovery stage of proceedings it was important to produce all potentially relevant evidence — a trial judge would ultimately decide the relevance of any particular document when the evidence was before the court. The plaintiff was ordered to preserve all material on his Facebook profile and produce all his Facebook material, including any postings, correspondence, and photographs.

In the 2011 case Morabito v. DiLorenzo, the plaintiff was ordered to re-attend examination for discovery to answer questions about photographs of himself he posted on his Facebook and MySpace pages. Similarly, in Ottenhof v. Kingston (City) Police Services Board, the defendant was granted leave to cross-examine the plaintiff on his affidavit of documents to determine the extent of his Facebook account, its contents, and relevant portions.

In Dosanjh v. Leblanc, the British Columbia Supreme Court in 2011 dismissed the defendant’s application for production of the plaintiff’s Facebook profile. The defendant sought access to the plaintiff’s social media sites on the basis that her pleadings had put her health, enjoyment of life, and employability in issue. The new B.C. Supreme Court Civil Rules required the defendant demonstrate the sought after documents could prove or disprove a material fact. The defendant had not indicated the material facts it believed could be proven by searching the plaintiff’s social media sites. It failed to satisfy the required onus and its application was dismissed.

By contrast, the following year in Fric v. Gershman the defendant provided a sufficient connection between the plaintiff’s Facebook photos and the material facts the photos would prove. The photos posted to the plaintiff’s profile showed her hiking, scuba diving, curling, dancing, and doing other activities. The plaintiff’s alleged fatigue was a key issue in the proceedings so the photos were deemed relevant. The plaintiff was ordered to produce an amended list of documents identifying the photographs and videos in her possession from any vacations taken since the accident and the court ordered that the photographs be identified by location, date, and time, when possible.

In Sparks v. Dubé, a private investigator engaged by the defendant discovered the plaintiff’s Facebook and LinkedIn pages. The defendant brought an ex parte application to download and preserve the entire contents of these pages. The public portion of the plaintiff’s Facebook profile included photos of her engaged in social and recreational activities, including zip lining, contrary to her alleged injuries. Justice Frederick Ferguson found the photos on the public portion of the plaintiff’s profile raised an inference that further relevant documentation existed in the plaintiff’s private profile. The information met the low threshold of having “a semblance of relevance” upon a serious issue in the proceedings since the photos were directly related to the plaintiff’s physical condition post-accident. The judge issued an injunction restraining the plaintiff from removing any data from her Facebook profile until it could be downloaded to a hard copy.

In summary, the case law is remarkably consistent across jurisdictions in characterizing the information posted on social networking sites such as Facebook as documents or records with potential relevance in litigation. Given the pervasive use of Facebook, plaintiff and defence counsel should be prepared to address social media as a routine part of their files.

James D. Cuming acts exclusively for plaintiffs in class actions, and serious personal injury claims. Craig Gillespie practises in the area of serious personal injury and medical malpractice. They are partners with Cuming & Gillespie in Calgary.

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