Canada: Facebook Not So Private? Ontario Court Finds Facebook Profile Discoverable

Copyright 2009, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Litigation, March 2009

On February 20, 2009, in "Leduc v. Roman", the Ontario Superior Court of Justice made an order permitting the defendant to cross-examine a plaintiff in a motor vehicle accident suit on his Supplementary Affidavit of Documents regarding the kind of content he posted on his private Facebook profile. As more and more people use social networking websites, this precedent-setting decision has potentially wide-ranging implications, in the context of litigation, since users of social networking sites may be required to produce information from their profiles that is not publicly available but only available to their designated contacts, and then possibly be cross-examined on the nature of that information. It appears courts are willing to infer the existence of relevant documents on a user's private profile based on the mere existence of a publicly available profile.

Facebook

Facebook is a free-access social networking website which allows individuals to interact with each other. It is by far the largest and fastest growing social networking website. Users can create a profile into which they can enter contact information, personal facts and views, and interests. In addition, Facebook has a number of features which allow users to interact with each other. These include the "Wall", a space on every user's profile page that allows "friends" to post messages for the user to see; "Photos", where users can upload albums and photos; and "Status", which allows users to inform their "friends" of their whereabouts and actions.

A "friend" on Facebook is an individual who is linked to the user and has certain privileges with respect to viewing the user's profile and contact information. Facebook users can set privacy options that limit access to their profile to their "friends", or those from the same network organized by city, workplace, school and region. For example, a user may make public only his name and profile picture, with the rest of his Facebook profile only accessible to "friends".

Background Facts Of The Case

The plaintiff, John Leduc, was involved in a car accident in February 2004. Mr. Leduc claimed that, as a result of the defendant's negligent driving, his enjoyment of life lessened and the accident had caused limitations to his personal life.

Mr. Leduc was examined for discovery in November 2006. At that time, the defendant's counsel did not ask whether he maintained an active Facebook profile. The issue of his Facebook profile only came to light after a defence medical examination, when Mr. Leduc mentioned to the defendant's expert psychiatrist that he had a lot of Facebook "friends".

Mr. Leduc had served an unsworn Affidavit of Documents in August 2006. In May 2008, the defendant's counsel requested a sworn up-to-date Affidavit of Documents. At the same time, the defence counsel's office conducted a search of Facebook profiles and discovered that Mr. Leduc had a Facebook account. As Mr. Leduc had restricted access to his Facebook profile, his publicly available Facebook profile showed only his name and picture. Defence counsel's office was not able to view the entire content of his Facebook profile.

In June 2008, the defence moved for several production-related orders, including orders for: (i) the interim preservation of all information contained on Mr. Leduc's Facebook profile; (ii) production of all information on the Facebook profile; and (iii) the production of a sworn Supplementary Affidavit of Documents.

Production Of Facebook Documents

Under the Rules of Civil Procedure, a party has a positive obligation to disclose "every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party" and to produce each such document unless privilege is claimed over it (Rules 30.02(1) and (2)). The obligation to disclose continues throughout the course of the action (Rule 30.07).

Under Rule 30.06 of the Rules of Civil Procedure, "[w]here the court is satisfied by any evidence that a relevant document in a party's possession, control or power may have been omitted from the party's affidavit of documents... the court may (a) order cross-examination on the affidavit of documents; (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged..."

Justice Brown, on appeal, found that Master Dash had correctly stated the law that postings on Facebook profiles are "documents" within the meaning of the Rules of Civil Procedure and that a party must produce Facebook postings that relate to any matter in issue in an action. In this case, if Mr. Leduc had posted photographs or other information on his Facebook profile depicting his activities and other enjoyment of life, those documents should be listed in his Supplementary Affidavit of Documents.

Discoverability Of Access-Limited Documents

In order for a court to order production of a document under Rule 30.06, a court requires evidence, as opposed to mere speculation, that a potentially relevant undisclosed document exists. This may prove difficult for a party seeking production of a private document, such as a private or limited access Facebook profile, given that the party is not able to access the private Facebook profile to determine whether it contains relevant information.

The majority of Canadian cases dealing with the production of Facebook postings have involved publicly available content. Prior to Leduc v. Roman, the only case that had considered the question of the production of access-limited content of a Facebook profile was Murphy v. Perger, a case that also involved a claim for damages resulting from injuries suffered in a car accident, including a claim regarding loss of enjoyment of life. In that case, Justice Rady held that, where in addition to a publicly accessible profile, a party maintains a private Facebook profile, a court can infer from the nature of the Facebook service the likely existence of relevant documents on a limited-access Facebook profile.

Justice Brown found that Master Dash had correctly interpreted Rule 30.06 as requiring some evidence from a moving party pointing to the omission of a relevant document in the other's affidavit of documents. However, in Justice Brown's opinion, Master Dash had erred in exercising his discretion under Rule 30.06 without applying the above principle articulated by Justice Rady in Murphy v. Perger. Master Dash held that the existence of Mr. Leduc's Facebook profile was not reason to believe it contained relevant evidence about his lifestyle. Master Dash distinguished the court's decision in Murphy v. Perger by noting that the plaintiff in that case had posted public photographs on her Facebook profile and had given the defence photographs as part of her productions, therefore creating a reasonable suspicion that the private part of her Facebook profile contained additional relevant photos. Master Dash found that the defendant, without any such evidence, was just fishing.

Justice Brown disagreed, stating: "With respect, I do not regard the defendant's request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated "friends" access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident." [para. 32]

Justice Brown also found that Master Dash, having granted a consent order that Mr. Leduc serve a Supplementary Affidavit of Documents, erred in dismissing the motion to produce without affording the defendant an opportunity to cross-examine Mr. Leduc on his Supplementary Affidavit of Documents about the kind of content posted on his Facebook profile. Justice Brown felt that: "[t]o permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial." [para. 35]

Implications

The Leduc v. Roman decision serves as a reminder that if a party posts on Facebook, or any similar website, content that relates to any matter in issue in an action, that party must identify such content in his affidavit of documents, given that data and information in electronic form, such as Facebook profiles, are producible as "documents" under the Rules of Civil Procedure. Lawyers must also be mindful of this when advising clients in preparing their affidavit of documents: Justice Brown noted that "it is now incumbent on a party's counsel to explain to the client, in appropriate cases, that documents posted on a party's Facebook profile may be relevant to allegations made in the pleadings" [para. 28] and, if so, are producible, given the widespread use of Facebook and the large number of photographs posted on Facebook profiles.

While a number of Canadian cases have addressed the issue of the discoverability of Facebook profiles, the majority of these dealt with the disclosure of publicly available content. The Murphy v. Perger and Leduc v. Roman decisions are significant given that it appears courts are willing to extend discoverability by inferring the likely existence of relevant documents on a limited-access Facebook profile by the mere existence of a publicly available profile. In Leduc v. Roman, the court went a step further by ordering a party to be cross-examined about the nature of content posted on his limited-access Facebook profile.

In reaching his decision, Justice Brown appears to have been persuaded by the fact that Facebook, as a social networking site, is a means by which one can reveal one's personal life to others, and for that reason, is likely to contain content relevant to how a plaintiff in a motor vehicle accident has been able to lead his life since the accident.

As Facebook is one of several social networking sites, the Leduc v. Roman decision would equally apply to a party's relevant documents posted on other networking sites, such as MySpace and LinkedIn, and would likely apply to content posted on blogs.

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.

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