Facebook discovery: Is civil litigation in uncharted waters?

With the use of social networking sites like Facebook, MySpace, and Twitter increasing exponentially, the legal risks and rewards appear to be growing as well.

In the United States, evidence from Facebook has been used increasingly in areas such as criminal justice, family law, and jury selection.

As John Browning, a Dallas-based lawyer and author of the forthcoming book The Lawyer’s Guide to Social Networking, writes: “Social networking sites can provide a wealth of information for lawyers. From educational background and work history to intimate revelations and incriminating video, this digital treasure trove is yours for the taking when access is unlimited.”

In Canada, many employers routinely monitor employees’ social networking profiles for defamatory comments about their work environments, while prospective employers are known to search public information when doing background checks.

On one side of the debate, there’s the argument that privacy is becoming an anachronism. On the other side, there’s the reality that people are willingly offering up intimate details of their lives by posting blogs and photographs.

The distinction between public and private has surfaced in a couple of recent personal injury cases in Ontario. In Leduc v. Roman, John Leduc was injured in an auto accident and claimed that as a result of the defendant’s negligence, his enjoyment of life had declined. The court ordered the preservation and production of Facebook material as provided for in the Rules of Civil Procedure.

Later, in Schuster v. Royal & Sun Alliance Insurance Co. of Canada, the plaintiff sued her insurance company for compensation for injuries suffered in an auto accident and claimed those injuries affected her ability to work and participate in social life.

When the defendant learned she had a Facebook page with a private area that allowed access to 67 friends, it sought an ex parte order to prevent her from deleting the content. The motion was dismissed on the grounds there was no proof the Facebook account contained relevant evidence.

Dan Michaluk of Hicks Morley Hamilton Stewart Storie LLP says of the two cases: “I think Leduc is more authoritative. Schuster is clearly inconsistent with Leduc, and what it appears to do is recognize a privacy interest in someone’s friends space in Facebook. I don’t think that’s the prevailing law.

“The prevailing law is that relevant evidence is admissible, and up until the recent Rules changes, the standard for production was the semblance of relevance. By definition, the semblance of relevance standard is invasive.”

He adds: “My understanding of the law is that you don’t weigh privacy interests in the balance subject to the establishment of a case-by-case privilege. And the standard for establishing a case-by-case privilege is very high. It’s based on an overriding public interest in the form of communication. I think it’s laughable to suggest that there’s a public interest in what goes on behind one’s private Facebook space.”

The leading case on the privilege issue is M. (A.) v. Ryan, Michaluk notes. “It’s a 1997 Supreme Court of Canada case which deals with the production of notes made by a psychiatrist who was interviewing a sexual assault victim, also the plaintiff in the case.

The court considered whether the privacy issue in those notes overrides the obligation to produce. And it applied a case-by-case privilege analysis to those notes.

“Even given the nature of those notes and the importance of the notes to the public interest, it ordered production with certain conditions to protect confidentiality.

So if you compare that type of communication and the need to obtain psychiatric services to the kind of random chitchat on one Facebook page, there’s no comparison. If those notes were produced, how can we possibly make a claim that the pictures of me skiing won’t be? That’s why I think that Leduc is a sensible decision.”

Leduc, in fact, outlines a new duty of care for counsel. As Superior Court Justice David Brown wrote: “Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.”

For Michaluk, the case highlights the fact that the perceptions of social networking users tend to be so disconnected from what the law of production requires that “the court feels necessary to make a direction to counsel to cover yourself by having a discussion with clients. If you don’t, the other side is not going to have a hard time arguing for a remedial order.”

Pamela Pengelley of Cozen O’Connor in Toronto believes the interesting issue now, given the changes to the Rules, is the question of relevance.

“The first big case that got a lot of attention was Leduc,” she notes. “Justice Brown took the view that these sites were meant to convey information to your social group as giving rise to a presumption that it would contain relevant information in cases where someone was saying that their quality of life had been damaged.

That was contentious because previously, the only other case on Facebook had said [that] based on the plaintiff’s public site containing relevant information, then we could infer that the private site might also have relevant information.

“So Justice Brown had taken that one step further and said, ‘I think you can infer there’s relevant information just from the site itself.’ Other provinces have followed that reasoning.”

But Schuster involved a different factual context, Pengelley points out. “The analysis was slightly different with the grounding of injunctions, but [Superior Court] Justice [David] Price looked at Justice Brown’s decision and said he didn’t agree that there was an automatic presumption.

The plaintiff’s counsel has an obligation to tell the plaintiff to disclose all relevant information in the affidavit of documents and, if the plaintiff doesn’t disclose a Facebook account in the affidavit, you have to presume it’s because there’s no relevant information.”

Overall, Pengelley believes Schuster represents “the last word in Ontario” on the issue. “Now that we have a new test with respect to relevance, there are also more stringent discovery guidelines. Leduc almost seemed too good to be true from a defence lawyer’s perspective.

With respect to drawing an inference of relevance, I think the guidelines set by the court in Schuster are going to become the norm. Leduc is still good law because they’re at the same level, but I think Schuster is going to be more persuasive.”

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