Collection of Case Law on Facebook Discovery – BC, NB, NL, NS, and SK

By | January 8, 2020

British Columbia

Fric v. Gershman, 2012 BCSC 614 (CanLII)

The plaintiff (at the time the litigation) was a recent law school graduate and articling in a law firm in Alberta. She sued for damages arising from a motor vehicle accident which occurred in 2008 when she was in her first year of law school. The plaintiff testified at her Examination for Discovery that since the accident, she has been in continuous pain and that the accident has limited her academically, socially, physically, and adversely impacted her prospect of employment. She also testified that her participation in her law school’s social and sport event “Law Games” in 2008 was limited due to injuries from the accident. She admitted to extensive post-accident travels with family and friends specifically to Cuba, Thailand, Fiji, Australia, and Montana, Florida, California, Seattle, and Portland. The plaintiff testified that she has a Facebook profile with some 890 “friends” whom she granted access to private contents on her profile. The Facebook account is used for both personal and professional communications, and contained some 759 photographs she had taken before and after the accident including those taken at the Law Games. The plaintiff admitted to continued participation (although with some pain) in sports and other physical activities since the accident. Prior to the trial, the defendants applied for an order to compel the plaintiff to produce complete copy of her Facebook profile including all photographs and information relating to those photographs posted from the date of the accident to the present time.

Held: (1) Some of the plaintiff’s photographs including those posted on her private Facebook profile ought to be disclosed; (2) To ensure fair trial of the case on its merits, the defence should be allowed discovery of all aspect of the plaintiff’s physical functioning and activity level since the accident. While the plaintiff may raise objection to the inadmissibility of some of the photographs at trial, the trial judge may determine that the prejudicial effect of a particular photograph outweighs any probative value; (3) Photographs of Ms. Fric’s activities at the Law Games are relevant to the claim of physical impairment and social withdrawal; (4) Before disclosing the photographs, the plaintiff may edit them to protect the privacy of third parties appearing in the photographs.

Bishop v. Minichiello, 2009 BCSC 358 (CanLII)

This was a personal injury law suit arising from a vehicular accident in 2005. The plaintiff claims he suffers from “debilitating fatigue” arising from injury sustained in the accident. The plaintiff further alleges that the fatigue is preventing him from maintaining employment and that he spends his late night on Facebook using the family computer. The defendant on the other hand contends that the plaintiff’s late night hour on Facebook might be responsible for his fatigue and not the injury from the accident. The defence thus brought a motion seeking access to the hard drive of the family computer to determine the duration of time the plaintiff spends on Facebook between eleven at night and five in the morning. The plaintiff’s mother testified at the examination for discovery that the plaintiff is the only person that uses the family computer between those hours. The plaintiff objects to the production arguing that the hard drive is like a filling cabinet and not a document hence not producible. The plaintiff also raised privacy concern with regards to the production.

Held: While it is true that the hard drive of the family computer is akin to a filling cabinet, the plaintiff is obligated to produce relevant documents contained in it. Simply because the hard drive contained irrelevant document does not absolve the plaintiff of the responsibility of producing those documents which are deemed relevant. (2) The information sought by the defence relates to a matter in issue as it may have probative value in relation to the plaintiff’s wage loss. Thus, the confidentiality, expense and time required to produce the material does not outweigh the value of production.

“Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.  In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege.  For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff’s family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case.  I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed.” @ 57.

New Brunswick

Carter v. Connors, 2009 NBQB 317 (CanLII)

The plaintiff sued the defendant for damages arising from a vehicular accident in 2004. Prior to the accident, the plaintiff held the position of an administrative clerk. She claimed that because of a soft tissue injury resulting from the accident, she has not been able to return to fulltime work. At the examination for discovery, the plaintiff conceded to having a Facebook account but refused to provide an undertaking to have her internet service provider disclose the plaintiff’s internet use record showing the number of time the plaintiff spent on Facebook. The plaintiff took the position that the information sought is either not relevant or disclosure would infringe her right to privacy. The defendant brought this motion for an order to compel the disclosure.

Held: The disclosure of the information sought will not infringe upon the plaintiff’s reasonable expectation of privacy. The information does not reveal very personal information that a right thinking Canadian would anticipate a reasonable expectation of privacy. It does not reveal “intimate details of the lifestyle and personal choices of the individual”. (2) By commencing the legal proceeding, the plaintiff implicitly consented to intrusion into certain information that would ordinarily be personal to her. Such legally permissible intrusions though are subject to an implied undertaking of confidentiality and for use in the ongoing litigation.

Sparks v. Dube, 2011 NBQB 40 (CanLII)

The plaintiff claimed general and special damages for injuries sustained in a motor vehicle collision in 2008 in Fredericton, New Brunswick. The plaintiff alleged chronic health issues arising from the accident which has resulted in among others her inability to study in the university, to lift objects such as her groceries, difficulty in travelling in a vehicle for more than one hour. The defence counsel hired a private investigator to conduct a search of the plaintiff’s social media profiles. This investigation revealed the plaintiff’s Facebook and LinkedIn accounts. The investigator limited his search to public areas of the plaintiff’s social media accounts. The photographs obtained in the public Facebook profile shows the plaintiff engaged in vacation travels and various social and recreational activities after the accident. Of note are colour photographs of the plaintiff “engaging in what appears to be strenuous physical activity while suspended on a “Zip Line” by a body harness” [47]. The Affidavit of Documents filed by the plaintiff did not disclose the existence of the social media accounts (though the court noted that this was as a result of ignorance of relevance and not a deliberate withholding of evidence). Prior to examination for discovery, the defendant brought an ex parte Motion requesting among others, an order for the preservation and downloading into a disk media all materials in the plaintiff’s social media accounts, and that the plaintiff’s lawyer be ordered to serve the order to the plaintiff, and then execute the order at the time of service without any prior notification to the client.

Held: (1) Based on the evidence from the photographs found on the plaintiff’s public Facebook profile, it is “reasonable to infer that behind her privacy settings there are other photographs, visible only to those people who are her “friends”, that have “a semblance of relevance” to the issue of her medium and long term recovery from the accident.” [48]. The evidence from her Facebook is important in evaluating the assessment by the plaintiff’s doctor of her physical limitations. There is no evidence from the Plaintiff’s LinkedIn account to reach the same conclusion. The materials on the Facebook should be ordered preserved and secured by downloading and sealing. (2) Directly conscripting the plaintiff’s counsel to execute and supervise the order would be injurious to the solicitor-client relationship.

Newfoundland and Labrador

Terry v. Mullowney & Terry v. Sinclair, 2009 NLTD 56 (CanLII)

The plaintiff was involved in two separate motor vehicle collisions with the defendants in 2001 and 2003. While defendants admitted to liabilities, the issue for determination by the court was the assessment of damages. During the cross-examination, the plaintiff was confronted with postings from the publicly-accessible area of his Facebook account which show him living a very active social life. After he was confronted with this information, he deleted his Facebook account because he did not want “any incriminating information” in Court.

Held: Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life.  He admitted as much in cross-examination.  After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court.  I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.

Nova Scotia

Conrod v. Caverley, 2014 NSSC 35 (CanLII)

This action arose from a motor vehicle collision between the plaintiff’s car and a dump truck driven by the defendant. The plaintiff alleges that injuries sustained from the collision left her with severe body pain. As a result, she claims she has not been able to return to work and that her participation in recreational and social activities as well as enjoyment of life have been severely restricted. She also claims that injuries from the collision has resulted in problems with concentration and focus limiting the time she is able to spend on websites like Facebook. The defendants contend that the plaintiff has placed her ability to participate in recreational and social activities in issue, and since this will be relevant to her claim for general damages and loss of enjoyment of life, it will be relevant to infer that the contents in her private Facebook profile will be relevant to her claim before the court. Specifically, the defendants assert that the Plaintiff’s Facebook usage history will be relevant in assessing the Plaintiff’s claim that the accident has limited the time she spends on social media websites like Facebook.

Held: (1) Whether the information contained in a party’s public Facebook profile will be relevant in a litigation will depend on the claim advanced by the party. (2) The Facebook usage data requested by the defendants is relevant to the plaintiff’s claim that injuries from the accident have severely limited her ability to concentrate, and the data is rightly subject to production. The disclosure of the data will not unreasonably infringe on the plaintiff’s privacy interest as the content will not disclose any potentially sensitive personal information about the Plaintiff’s internet activity.

Saskatchewan

Wesaquate v. Stevens Webb, 2012 SKQB 2 (CanLII)

The plaintiff who was injured in an automobile accident, brought this action claiming damages for a brain injury which she alleges resulted in her cognitive impairment and loss of enjoyment of life. During her examination for discovery, she testified that she has a Facebook account with some “friends” most of whom are people she has known from high and elementary school. There was no evidence in the examination for discovery to suggest that the Facebook profile (private and public) contains any relevant material. The defendant brought an application for an order of preservation of all materials in the Facebook account as well as production of all materials contained in the plaintiff’s Facebook account. The defendant filed a copy of the publicly accessible profile in the Facebook account which contains the plaintiff’s profile picture and a list of some of her “friends”. Information on the private profile is restricted.

Held: To order the production of the document sought by the defendant, there must be some evidence (as opposed to mere speculation) that a potentially relevant document exists and has not been disclosed. The defendant is not allowed to embark on a fishing expedition of private materials on the plaintiff’s Facebook account.

“If I were to allow the defendants’ application, it 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.” @ 11.

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