A 27-year-old Canadian man is seriously injured in a workplace accident that has left him unable to sit for more than 15 minutes a day, ended his social life, and left him without a job.
The defence counsel in the case brings a motion forward requesting disclosure of all Facebook photos, videos, wall postings, and other relevant information to the man’s personal injury case, as well as access to his hard drive.
Because the injured plaintiff is claiming nearly $6 million in damages, defence counsel argues the motion is necessary to establish the extent to which the man is actually injured.
Should the motion be granted?
According to Superior Court Master Ronna Brott the answer could very well be yes.
Making the comments at an Ontario Bar Association Institute insurance law debate between Lawson LLP lawyer Barry Marta and Howie Sacks & Henry LLP lawyer Adam Wagman today, Brott handed down her ruling in the fictional case, saying while she would order the production of the Facebook profile files, she would not do the same for the hard drive.
“Many people I’m sure would be surprised to know that, where the information requested in the motion is relevant to the case, it may very well be granted without any infringement into the plaintiff’s privacy, particularly where that Facebook profile was publicly provided,” says Brott. “In this case, I would say Facebook profiles are producible documents and they must be preserved.”
In the mock hearing, Marta argued because the plaintiff had control of his Facebook profile and because the information contained in his profile would be relevant to his personal injury claim and corresponding disability claim, his motion for disclosure should be granted.
However, Wagman argued the request was no different that asking to snoop through the plaintiff’s home and rifle through his personal things, saying casting a wide net for the plaintiff’s entire personal information found in his Facebook profile would be nothing more than a “phishing scheme.”
Brott ultimately agreed with Wagman, adding plaintiff’s counsel must take care to ensure Facebook searches are done soon and quickly to ensure the client understands what can and cannot be produced and disclosed.
To help lawyers with this task, Wagman offered the following advice to plaintiff’s lawyers today at the OBA’s annual Institute held at the Westin Harbour Castle in Toronto:
1. Explain to clients what they can and can’t do on Facebook, and more importantly what they should and shouldn’t be doing within the context of their case, particularly in terms of what personal information may and may not be produced in court.
2. Tell clients to set every aspect of their Facebook profile to the highest possible privacy settings, and make sure they actually do so.
3. Produce something in your documents that shows the master you have clearly made an effort to identify what is and is not relevant in the case when it comes to the client’s Facebook profile. If nothing is relevant, still produce at least something to prevent eyebrows from being raised.
4. Keep pushing the issue of privacy and phishing in your case and really work to push back against the idea that your client’s profile should be public.
“Make sure you do your job and really investigate every aspect of your plaintiff’s digital profile and make sure you are educated about what could be producible in court,” says Wagman. “Not only is it smart, but you have an obligation to your client to do so.”
Marta added defence counsel can also take similar steps.
“Get as much information about the plaintiff as you can and make sure it is extremely detailed,” says Marta. “Get a copy of Facebook’s user agreement, and most of all, make sure you have enough evidence. The bottom line is you need to do your due diligence.”