Canada: Records Management @ Gowlings: July 30, 2012 - Volume 3, Number 7

In this issue:

  • Legal Technology
  • News and Articles



Thompson et. al. v Autoliv Asp, Inc. et. al.

This is a personal injury and product liability case, where the Court granted, in part, the Defendant's motion to compel production of material from the Plaintiff's Facebook and MySpace accounts. The plaintiffs were involved in a car accident which allegedly left one of the plaintiffs, Nicole, partially paralyzed and unable to take care of herself without assistance. An action was brought against Autoliv for knowingly producing faulty seatbelts and the Defence brought the present motion to compel Plaintiff Nicole "to produce complete and un-redacted copies of the Plaintiff's Facebook and other social networking site accounts." As part of their request, the defendants asked for in camera inspection of all wall posts, photographs and messages on the Plaintiff's Facebook and MySpace accounts from April 27, 2007 to the time of the motion.

Autoliv claimed that before turning to formal discovery requests, they obtained wall posts and photographs from the Plaintiff's public Facebook page which showed the Plaintiff engaged in post-accident social activities, activities which, presumably, she would not be able to engage in given the injuries she claims to have suffered. Since then, the Plaintiff had changed her privacy setting, blocking the public from viewing her page.  The Plaintiff argues that the request amounts to nothing more than "an overly broad fishing expedition", that the Defendant has not made a sufficient showing that the material is reasonably calculated to lead to the discovery of admissible evidence and that the materials sought was irrelevant to the case.

The Court found that material relating to the consequences of the Plaintiff's injuries were relevant, but that litigation does not permit the complete and open public display of the Plaintiff's life. As the court has broad discretion in controlling discovery, the Court settled on a compromise. The Plaintiff was ordered to upload all information from her Facebook and MySpace accounts for the requested dates onto an electronic storage device and provide that to Defense counsel. Defense counsel was not permitted to make copies or disclose the material to anyone, and only to review it to determine what material it believes to be discoverable. If the parties could not agree with whether certain material is discoverable, a Magistrate was to give a final ruling. 

Peter Kiewit Sons', Inc v. Wall Street Equity Group, Inc (2012), WL 1852048

The Plaintiff, Peter Kiewit Sons', Inc, allege the Defendants misused the Kiewit Mark, a U.S. Service Mark, in an attempt to solicit clients.  As a result, the Plaintiff brought a claim against the Defendants for violation of trademark law, unfair competition, and commercial misrepresentation.  This case deals with three separate motions: the Defendants' motion to amend its complaint; the Defendants' motion for a protective order; and the Plaintiff's motion for sanctions.

The general principle for a motion to amend is that once the time for amending a pleading has expired, a pleading may only be amended if the opposing party provides written consent or with leave of the court.  The court must determine whether there is "good cause" for allowing the amendment to the pleading after the expiration of the amendment period.  In this case, the court found that the Defendants' delay of a year in amending its answer was a result of its decision to wait to contact an attorney with expertise in trademarks and this did not amount to a justification for granting an amendment to the pleading after the deadline.

The Defendants sought a protective order preventing the Plaintiff from contacting the Defendants' current and former clients, arguing that it would cause the Defendants irreparable harm.  The Plaintiff submitted that it should be permitted to contact these clients in order to determine whether the Defendants used the Kiewit Mark to solicit business and the representations the Defendants made. 

The court will only enter an order protecting a party from certain kinds of discovery if there is "good cause."  The court required the Plaintiff to show that the information it sought from the Defendants' clients was both relevant and necessary.  It then balanced the injury to the Defendants with the Plaintiff's need for the information.  The court was critical of the Defendants' failures to meet their discovery obligations and thus allowed the Plaintiff to contact the Defendants' clients subject to some restrictions.   

The Plaintiff sought sanctions for the Defendants' disruptive behaviour during the course of the litigation.  Specifically, the Defendants provided false affidavits and testimony, and failed to produce electronic documents during discovery.  Among other things, the Defendants' intentionally moved electronic storage devices to prevent responding to a subpoena and threw a computer server in a dumpster.  The Court did not believe the Defendants' justifications for the misrepresentations and improper actions and found that the Defendants had "engaged in a pattern of sanctionable conduct."

The People of the State of New York v Malcolm Harris

Twitter, Inc sought to quash a subpoena issued by the New York County District Attorney's Office which required Twitter to provide all user information, including tweets, posted between September 15, 2011 and December 31, 2011 from the Twitter account @destructuremal. The Court held that Twitter was to provide both "non-content" and "content" information associated with the Twitter account of alleged criminal defendant Malcolm Harris.

The first issue the Court decided was that Harris lacked standing to challenge third-party disclosure requests himself, in this case, subpoenas issued to Twitter.  The Court rejected Twitter's argument that this conclusion placed an unduly heavy burden on Twitter because it would be obligated to respond to all subpoenas or move to quash the subpoenas itself every time. Such requests, the Court decided, "[do] not take much to search and provide".

The second issue was whether the court order was a violation of the Fourth Amendment, the Federal Stored Communications Act or any other New York law. A violation of the Fourth Amendment requires the defendant show (1) a physical intrusion onto defendant's personal property or (2) a violation of a defendant's reasonable expectation of privacy. In this case, there was no physical intrusion into the defendant's Twitter account and the defendant did not have a reasonable expectation of privacy, especially when the tweet was "sent around the world". Further finding that there was no violation of the New York Constitution, the Court also noted that the Stored Communications Act specifically contemplated the service provider's standing to challenge an order issued pursuant to it.

The court analogized tweeting to shouting out the window in front of witnesses on the street. These witnesses could, of course, be compelled to testify about what was shouted. As today's social networks are like an "online, information superhighway," third party providers like Twitter were akin to those witnesses.

In their conclusion, the Court recognized that the law will always be playing catch-up to the evolving state of social media. And while the Constitution gives the public the right to post, there will still be consequences for public posts.  "What you give to the public belongs to the public.  What you keep to yourself belongs only to you."

Consequently, Twitter was ordered to provide Harris' account information and tweets for in camera inspection by the court according to the subpoena. The only exception was regarding information less than 180 days old, or from December 31, 2011 onwards, for which a warrant was required.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions