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Social media evidence plays important role in litigation

Focus on: Survey suggests increase in lawsuits related to shared content
|Written By Michael McKiernan

Lawyers need to brush up on their social media skills to properly represent their clients as litigation involving evidence from sites such as Facebook and Twitter surges, according to a Toronto litigator.

In a recent survey by Robert Half Legal, more than half of the lawyers surveyed reported an increase over the last two years in lawsuits related to postings, images and data found on social media and mobile devices. And more than a quarter saw a spike in cases involving information stored on a work-related device.

But Ron Podolny, a class actions litigator with Siskinds LLP in Toronto, says he doesn’t believe lawyers are paying attention to these relatively new sources of evidence often enough when it comes to discussions over discovery.    

“There is plenty of case law establishing that these are documents like any other, but I’m not sure everyone turns their mind to them when a new client comes through the door,” he says.

Even those with a basic awareness of which sites and programs to search could still disadvantage their clients if they don’t know how they work, Podolny adds. Without some familiarity of issues such as privacy settings, lawyers risk missing important evidence held by either side of the dispute.

“Platforms keep changing, but whether you’re acting for the plaintiff or the defendant, it’s something you need to get up to speed on,” Podolny says. “Otherwise, it does a disservice to everyone: first to the court, because some of these postings are going to be probative and relevant; and second to clients, because I’d question whether you’re fulfilling your professional obligations under the Rules of Professional Conduct if you’re only producing traditional, old-style documents.”

Puneet Tiwari can attest to the increasing prevalence of social media and mobile data evidence in Canadian courts. As an articling student and associate at a small Toronto firm, he was responsible for client intake, where he would often receive emailed screenshots or a stack of printouts of messages received via text, WhatsApp, Facebook and a variety of other platforms.  

Processing and keeping track of different platforms can quickly become unmanageable, Tiwari says, noting that a three-minute conversation conducted over SMS can easily turn into 20 pages of printed text, which may then have to be re-digitized to send to opposing counsel during discovery.

“It’s all very redundant and frustrating,” Tiwari says.

To tackle the problem, he and his software engineering co-founder developed Evichat, an app designed for extracting and reviewing mobile-based evidence, which Tiwari characterizes as an “e-discovery-lite” system.

Jelena Buac, a member of the family law practice group at London, Ont.’s McKenzie Lake Lawyers LLP, says  only a minority of her matters progress without touching on mobile data or social media evidence.   

“Sometimes, family law is less about the hard facts. There’s a lot of he-said, she-said, so messages and postings can be used to back up or contradict what people are saying in court,” Buac says.  

To avoid ongoing problems, she urges clients not to refer to their family law matters on social media sites such as Facebook, and is even considering incorporating a warning about the subject into her retainer letter.

“People tend to view social media as an outlet for their grievances, but I tell them it’s better to be silent when it comes to their litigation,” Buac says. “If you’re saying in court filings that you’re able to communicate with your ex-spouse courteously, but they produce a text message where you used foul language about them, it could be used to debunk your credibility.”

 

For example, in the 2015 case of Tran v. Tran, Ontario Superior Court Justice Frances Kiteley ordered a trial on the issue of child support after the mother used Instagram and Facebook posts to bolster her claim that the father was employed and had bought a sports car rather than pay support.  

And in an older case; B.V. v. P.V., Ontario Superior Court Justice William Hourigan relied on the evidence of a mother’s Twitter feed over her testimony in court when it came to the issue of how heavily she drank. By referencing “making inappropriate phone calls while intoxicated and being hung over,” the postings made it “clear that she engages in a pattern of excessive consumption of alcohol,” despite her claims to the contrary, Hourigan wrote.

Podolny says the nature of social media platforms throws up new ethical issues for lawyers in their dealings with clients. He says counsel should feel comfortable instructing clients to avoid posting pictures of statements that may harm their legal case. At the other end of the scale, advising the destruction of information is clearly unethical, but that still leaves a large grey area in the middle.

“I think there’s still a debate over what to do about documents that were previously posted but that a client may wish to take down or block access to once they have launched a case,” Podolny says.

  • Inquisit Solutions Ltd.

    Larry OBrien
    Great article and well timed. Both sides will use SM to their advantage.

    As a result evidence rules will mature, much the same way as they did with Digital Forensics. The rules will be constantly getting more precise as it relates to continuity of evidence etc. About 75% of our investigations already have an SM component in them.
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