Electronic Discovery of Facebook Evidence in Civil Litigation

By | January 8, 2020

With about 1.79 billion monthly active users in late 2016, Facebook is undisputedly the most active and popular social network worldwide. This popularity makes Facebook a veritable source for evidentiary discovery in civil litigation. Increasing number of litigants and litigating counsel are turning to Facebook for important evidentiary information about opposing parties in family, labour, tort and other litigation.

Cases in which the defendants initially appear to have very little chance of success has been won by the defendants, discontinued by the plaintiffs, or settled for a fraction of the original claim as a result of ‘smoking gun’ evidence obtained from a search of opposing party’s Facebook profile. In Terry v. Mullowney & Terry v. Sinclair, 2009 NLTD 56 (CanLII), the plaintiff initially seemed to have had a very good case until evidence from his Facebook account turned the case on its head. Even the presiding judge in that case noted the strength of the Facebook evidence when he stated “[w]ithout this evidence, I would have been left with a very different impression of Mr. Terry’s [plaintiff’s] social life. He admitted as much in cross-examination. After he was confronted with this [Facebook] 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.”

In Kourtesis v. Joris, 2007 CanLII 39367 (ON SC) the plaintiff who was injured in a motor vehicle accident claimed damages for future loss of income and permanent loss of enjoyment of life. She claimed to suffer from chronic pain resulting in diminished social life. Facebook evidence emerged during the trial and after the plaintiff had already given evidence. The judge allowed the defence request for introduction of the plaintiff’s Facebook photographs which was discovered by the defence counsel. Brown J. stated that “[i]t is clear that the Facebook photographs were an important element of the case.” The Facebook evidence was instrumental in reducing the damages payable by the defendant.

Similarly, in Cikojevic v. Timm, 2008 BCSC 74 (CanLII), the defendant in a motor vehicle accident having admitted liability, the plaintiff sought an advance for damages pending trial to assist in funding the cost of rehabilitation and treatment recommended by her experts. The request was based on the fact that her family does not have the resources to fund the treatment. In refusing to order the payment of advance for damages, Master Keighley noted the lack of evidence to show anything remarkable about the plaintiff’s financial circumstances. His decision was based in part on a review of some 600 photographs from the plaintiff’s Facebook profile which “show her participating in golf, snowboarding, rock-climbing, travel and other social activities all of which have a cost.” The potential for Facebook profiles to house ‘smoking gun’ evidence especially in personal injury litigation has made it a go-to place for defence lawyers. Hence lawyers are adopting genius and ingenious means to search for and discover the classic social media or Facebook evidence that may be instrumental in successful prosecution or defence of their cases. This raises ethical issues that will be examined in my next blog.

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