Posted on: 6/22/2012
Geoffrey E. Moysa, McMillan LLP
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The continued proliferation of Facebook users worldwide doesn't only benefit Mark Zuckerberg; it's also a potential boon to lawyers defending personal injury claims. Plaintiffs are now increasingly likely to maintain the online equivalent of a personal journal (complete with pictures) that may be discoverable in litigation – that is, if defense counsel can lay the proper foundation for its production.
While there is still not much jurisprudence on social media production north of the border, recent decisions in three Canadian jurisdictions suggest that those courts are developing a consistent approach that allows for production of Facebook information when the requesting party can show a connection between the allegations in its pleadings and the actual contents of the Facebook page in question.
To begin with the basics, parties to litigation in Canada are required to produce all relevant documents in their possession, power or control. It has long been held that the definition of "document" includes electronic media, including web pages, and Canadian courts have not hesitated to follow this logic through to find that the contents of litigants' social media pages, including Facebook and Twitter, are "documents" for the purpose of discovery.
Where parties maintain Facebook or Twitter pages with restricted privacy settings, however (i.e. not viewable by the public at large), Canadian courts have also weighed the parties' privacy interests against the potential relevance of the information.
In Dosanjh v. Leblanc and St. Paul's Hospital, 2011 BCSC 1660, the plaintiff in a medical malpractice action alleged that she suffered cognitive impairment, and that her social life had been affected. In deposition she revealed that she had maintained Facebook and Twitter accounts. Based on this evidence the defendant's counsel applied to the British Columbia Supreme Court for the preservation and production of the plaintiff's laptop, iPhone and the contents of her social media accounts.
The Court refused to grant the defendant's application. Master Taylor found that the plaintiff had a privacy interest in her social media conversations, and that the defendant had not shown a sufficient connection between any of the social media evidence it sought and any material facts to be proven in the action (BC's Rules of Civil Procedure had recently been amended to restrict the definition of a document from simple "relevance" to whether the document could "prove or disprove a material fact").
Rather, the plaintiff's evidence showed that she set up her Facebook account primarily to keep in touch with friends and family around the time of her surgery, and had taken it down a year and a half before the motion. The Court stated that "more is required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant's privacy." Master Taylor called the defendant's application a "classic fishing expedition, but without the appropriate bait." The Court concluded that requiring the plaintiff to capture and produce the postings would be akin to recording private conversations after the fact.
A similar approach was used by the Saskatchewan courts in Webb v. Wesaquate, 2012 SKQB 2, affirmed 2012 SKCA 13. In that motor vehicle personal injury case, the plaintiff alleged that she suffered a brain injury that decreased her enjoyment of life. On deposition, the plaintiff admitted that she had 500 friends on Facebook, and spent approximately two hours per day on the site. The defendants moved for production of all of the postings and photographs on the plaintiff's Facebook account.
As in the Dosanjh case in British Columbia, the Saskatchewan Court of Queen's Bench rejected the defendants' application, holding that there was nothing in the plaintiff's deposition answers to suggest that there was anything relevant on her Facebook page. In making his decision, Justice I.D. McLellan also weighed the plaintiff's expectation of privacy, commenting that the defendants' application "would be tantamount to holding that mere proof of the existence of a Facebook site should allow a party to gain access to all material placed on that site. It would be an invasion of the plaintiff's privacy that I am not prepared to make." The Court did, however, order that the plaintiff preserve the contents of her Facebook page in the event that relevant information came to light in the future.
In Morabito v. DiLorenzo, 2012 ONSC 7379, the plaintiff in a motor vehicle personal injury case deposed that he maintained Facebook and Myspace pages, but refused to answer further questions on their contents, stating that they were "private". The defendant brought a motion to the Ontario Superior Court of Justice for production of the plaintiff's social media pages.
While Justice Ramsay acknowledged that mere proof of existence of a Facebook profile does not entitle the opposing party to access to all material placed on the site, he held that any photographs of the plaintiff on his social media pages, taken before and after the accident, would be relevant to the effect of his injuries and to what he extent they affected his enjoyment of life. He ordered the plaintiff to re-attend deposition to answer questions about photographs of himself on his Facebook and Myspace pages, and produce any such photographs uncovered based on this deposition. Justice Ramsay rejected the defendant's request for production of the plaintiff's Facebook status updates and wall messages, however, commenting that the plaintiff had not proven their relevance.
In addition to proving that there are still people out there who actually use Myspace, Morabito demonstrates that Canadian courts will try to achieve an appropriate balance between a plaintiff's privacy interests and the discovery rights of the defendant. However, all three decisions suggest that some of these tensions remain unresolved. For instance, the contents of otherwise "private" conversations are traditionally discoverable if relevant, but the BC Court's decision in Dosanjh suggests that such communications should be considered private and non-discoverable if recorded in writing on Facebook. This approach is inconsistent with the long-established principle that private written correspondence (including email) is discoverable if relevant, and arguably places too much weight on privacy interests.
It also may have the effect of selectively reversing the discovery onus. While it is normally the plaintiff's obligation to produce all relevant documents prior to oral discoveries, in the case of social media courts seem to be endorsing a practice where this information is not producible unless and until defendants on deposition can establish the potential relevance of the material, which they have not yet seen. This "blind" approach arguably places an unfair burden on defendants, when perhaps the obligation ought to be on the plaintiff to select and produce relevant Facebook postings before oral discovery.
The lesson for defense counsel is that social media still represents a new frontier for Canadian courts when it comes to discovery. While privacy interests may present an obstacle to the production of social media information, careful advance research and specific deposition questions can help lay a proper foundation to produce relevant Facebook content while not engaging in a fishing expedition.
Geoff Moysa is an associate in the Toronto office of McMillan LLP, where his practice focuses on product liability, franchise/distribution litigation and class action defense. His Facebook privacy settings are set to maximum. He can be reached at Geoff.moysa@mcmillan.com.