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.


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