As was noted in the previous blog, ethical rules impose limits on a lawyer’s informal discovery of evidence in the private Facebook profile of an opposing party in litigation especially where such party is represented by a lawyer. In situations where such ethical rules prevail, access to the private profile can only be undertaken through formal e-discovery involving a legal process.
Rules of civil procedure usually impose an obligation on litigants to disclose and produce relevant documents to opposing party in litigation. This disclosure is made in affidavit of documents. Thus, where a lawyer’s online search reveals the existence or likelihood of existence of relevant information in a party’s private profile, or evidence at examination for discovery seems to suggest the existence of such information, and this relevant information was not disclosed in the party’s affidavit of documents, formal e-discovery steps may be initiated.
The appropriate step to be taken will depend on the stage of the legal proceeding. If an examination for discovery has not taken place, an appropriate step would be to confront the party at the examination for discovery with questions relating to relevant information in its Facebook account. A request may be made at the examination for discovery for an undertaking by the party to produce all or relevant portions of the Facebook account. If the party fails to give an undertaking to this effect, then the next step would be to bring a motion for an order to compel preservation and production of the relevant Facebook profile.
In Ottenhof v. Ross, Kingston Police Services Board et al. 2011 ONSC 1430 (CanLII), the defendants discovered the existence of the plaintiff’s Facebook profile through an online social media search. The plaintiff was confronted with this information at the examination for discovery and a request was made for production of a complete copy of his Facebook profile. The plaintiff refused the request prompting the defendants to bring a ‘motion to compel refusal on an examination for discovery.’ Ray, J. noted that even if the existence of the Facebook account is not listed in a party’s affidavit of documents, the responding party is entitled to cross-examine if a Facebook account does exist, whether it contains any relevant document, and request production of the relevant content for which privilege is not asserted.
Suffice it to state that if the party under cross-examination (at the examination for discovery) denies the existence of any Facebook account or the existence of any relevant information in the private profile, that may be the end of the matter, unless the lawyer can lead evidence to contradict the denial. At the examination for discovery in Young v. Comay 2013 ONSC 7552 (CanLII), the plaintiff acknowledged she has a Facebook account which she uses to keep in touch with her family. She also acknowledged the existence of family photographs (in the account) but asserted that they are not related to her personal injury claim. Broad J. refused to order production of the plaintiff’s Facebook profile because the defendant has not lead any evidence to contradict the plaintiff’s testimony.
The next step in the formal e-discovery process will arise in the following situations: first, where the evidence at examination for discovery proves the existence of a Facebook account owned by the opposing party but the party opposes the production of the Facebook information either on the ground of privacy or disagreement as to relevancy. Secondly, where examination for discovery has ended but evidence subsequently emerges of the opposing party’s ownership of a Facebook account, and there is evidence to infer the existence of relevant information in the private profile which was not disclosed in the affidavit of documents.
In each of the cases above, the party may bring a motion before the court for an order to compel preservation and production of the relevant information on Facebook. Review of cases across jurisdictions in Canada reveals the court’s approach to motions for preservation and production of such evidence. These cases seem to suggest that the provincial courts in Canada tends to adopt what has been referred to in the U.S. jurisdiction as the factual predicate approach (McPeak 2014). This approach strives to limit reckless e-discovery (or fishing expedition) of Facebook evidence by imposing an obligation on party seeking discovery to show evidence from which an inference could be reasonably made of the existence and relevancy of the evidence for which discovery is sought. This would require the party to show that (1) publicly accessible information on Facebook hints to the existence and relevancy of information hidden on the private profile; or (2) information acknowledged to exist in the private profile would be relevant evidence because of the nature of the claim being asserted, or the facts which the opposing party has put in issue (McPeak 2014).
In Schuster v. Royal & Sun Alliance Insurance Company of Canada 2009 CanLII 58971 (ON SC) and Frangione v. Vandongen et al 2010 ONSC 2823 (CanLII), the Ontario Superior Court took the position that an inference that a party’s private Facebook profile contains relevant information can be made if there are relevant information available in the public profile. In cases where such inference has been made, some plaintiffs have sought to rely on privacy concerns to challenge production. In such situations, the court strives to balance the plaintiff’s privacy interests and the defendant’s disclosure interests. Thus, proper administration of justice would require that the court appropriately limit (not shield) the invasion of the plaintiff’s privacy, while at the same time allowing the defendant access to evidence that may be relevant to defend the claim against it. The British Columbia Court of Appeal in M.(A.) v. Ryan, 1994 CanLII 6417 (BC CA) noted the rationale for the balance:
“On the one hand, a person who has been injured by the tort … ought not to be driven from the judgment seat by fear of unwarranted disclosure – a sort of blackmail by legal process. If such a thing were to happen, the injured person would be twice a victim. But, on the other hand, a defendant ought not to be deprived of an assessment of the loss he actually caused, founded on all relevant evidence. It would be as much a miscarriage of justice for him to be ordered to pay a million dollars when, if all the relevant evidence were before the court, the award would be for one-tenth that sum…” (Paras. 46,47).
Thus, in addressing the privacy concern of a party opposing production of private electronic information on its Facebook profile, the court tends to considered whether the probative value of the information sought is such that its disclosure would not infringe upon the party’s reasonable expectation of privacy, or whether the information is so personal in nature that “most right thinking Canadians would expect a reasonable expectation of privacy.” (Carter v. Connors, 2009 NBQB 317 (CanLII)). The court may also take into consideration the privacy interest of third parties who are not parties to the litigation.
The problem with the application of factual predicate approach here is that it allows a party to thwart the discovery process by adjusting the privacy settings in its Facebook account to limit the information available on the public profile from which an inference could be made. Where this is the case, the defendant may have to use the examination for discovery to cross-examine the plaintiff with a view to getting as much information as possible about the plaintiff’s private profile. Admissions or evidence obtained in the process of such cross-examination could be the most useful piece of evidence to support a motion for production.
The absence of relevant evidence in a party’s public profile from which an inference could be made may not necessarily prevent the application of the factual predicate approach. There may be situations where the nature of the claim, the fact that the plaintiff has put his physical or mental condition in issue, coupled with evidence admitted by the plaintiff justify the application of the factual predicate approach.
The British Columbia case of Fric v. Gershman 2012 BCSC 614 (CanLII) illustrates this. The plaintiff in that case, a recent law school graduate sued for damages arising from a motor accident which occurred in November 2008 when she was in her first year of law school. At her examination for discovery, she admitted to participation in her law school’s social and sport event “Law Games” in December 2008. She further asserted that her participation was limited due to injuries from the accident. She also admitted to ownership of a Facebook account where she posts photographs including those taken during her participation in the Law Games shortly after the accident. The plaintiff public Facebook profile does not contain any photograph from the Law Games or any other relevant information from which an inference could be made about the content of the information in the private profile. In the absence of any relevant information from the public profile from which an inference could be made under the factual predicate approach, the issue before the motion judge was whether to order production of the photographs on the private profile. Master Bouck noted that the plaintiff has put in issue her ability to participate in certain sports or recreational activities. Hence photographs of the plaintiff’s activities at the Law Games posted on the private portion of her Facebook profile are relevant to the claim of physical impairment and social withdrawal which are in issue. Master Bouck ruled that the photographs ought to be disclosed. It is interesting to note that the production order in Fric v. Gershman was made even in the absence of any evidence in the public profile warranting an inference. The decision was based on the fact that the plaintiff has put her physical condition in issue coupled with her admissions at examination for discovery which seems to suggest or warrant an inference as to the existence of relevant evidence in her private Facebook profile.