Production of Facebook pages

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is a litigation lawyer practicing at Perley-Robertson, Hill & McDougall LLP in Ottawa, Ontario. He may be reached at 613.566.2823 or obourns@perlaw.ca.

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Facebook information and images can be extremely important evidence in a legal dispute.  Decision by decision the courts have been fine tuning when and how much Facebook related production will be required.

The most recent decision is in Frangione v. Vandongen (2010) CarswellOnt 5639, a personal injury case, where the Defendant sought, amongst other things, that;

[…] the plaintiff preserve all material contained on his personal computer including any material contained on his Facebook website;

[…] additionally or alternatively, the plaintiff produce all material contained on his Facebook website including any postings, correspondence and photographs;

Master Pope explained that every party to an action in Ontario has a positive obligation to disclose “every document relevant 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 such document unless privilege is claimed in respect of that document. (Rules 30.02(1) and (2)) To comply with that obligation every party must produce a sworn affidavit identifying the relevant document. (Rule 30.03) This obligation to disclose continues throughout the action. (Rule 30.07).

Relevant documents includes those on a personal hard drive and must be produced if they are relevant to the issues in the action as framed in the pleadings. (Rule 1.03, Rule 30.01(1)(a), Rule 30.03, Leduc v. Roman)

If a party suspects that the other side has not produced all relevant documents then it can bring a motion under Rule 30.06 and if 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; and

(d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

However, to be successful in seeking any of these remedies the party seeking disclosure must produce evidence, as opposed to mere speculation, that potentially relevant undisclosed documents exist. (Frangione, para 14)

As mentioned above, in the Frangione, the Plaintiff had produced all public Facebook pages, however the Defendant sought the production of 9 headings of other Facebook related materials including the PLaintiffs messages in his Inbox, the content under the “Info” tab, and the Videos posted by the Plaintiff.

The Plaintiff took the position that:

[…] a Facebook profile that is private in which he has granted access to some 200 friends. He says he has produced all pages of his Facebook profile that are available to the public, which contain both photographs and communications with his friends. He refuses to produce both the private-access portion of his Facebook site and his computer hard drive as he contends that it contains private communications with third parties that are privileged as well as privacy issues. (see para 4)

The Defendant argued that the requested productions were relevant to the issues of the assessment of damages for loss of enjoyment of life and the plaintiff’s ability to work.

After summarizing what exactly Facebook is (please see paragraph 33 for some good laughs) Master Pope stated, at para 34, that:

It is now beyond controversy that a person’s Facebook profile may contain documents relevant to the issues in an action. Brown J. in Leduc, supra, at paragraph 23, cited numerous cases in which photographs of parties posted to their Facebook profiles were admitted as evidence relevant to demonstrating a party’s ability to engage in sports and other recreational activities where the plaintiff put enjoyment of life or ability to work in issue.

It is also good law that a court can infer from the nature of the Facebook service the likely existence of relevant documents on a limited-access Facebook profile. (see LeducMurphy v. Perger (2007), 67 C.P.C. (6th) 245 (Ont. S.C.J.))

Master Pope then held that because the information and photographs on the public portion of Facebook were relevant, in that they showed the plaintiff interacting with presumably friends at a wedding and other public places, that we can infer as likely that his privately-accessed Facebook site contains similar relevant documents. (see para 36)

After finding that the Facebook documents were relevant Master Pope also considered whether the documents were “private” and came to the following conclusion:

The plaintiff’s testimony on discovery was that he maintained privacy over communications with his friends that numbered approximately 200 although only five of them were close friends. In other words, he permits some 200 “friends” to view what he now asserts is private. This is a preposterous assertion especially given his testimony that only five of the 200 are close friends. In my view, there would be little or no invasion of the plaintiff’s privacy if the plaintiff were ordered to produce all portions of his Facebook site.

On the whole I think Master Pope’s analysis was fair and correct at law, however, he did fail to acknowledge the difference between someone’s inbox communications and the rest of one’s Facebook profile.

Someone’s Facebook “Inbox” is in fact distinct in that it’s the only portion of the website where users interact one-on-one.  It acts essentially like email.  Thus, in the Frangione case, unlike the “Wall” or the “Info” tab, the Plaintiff’s 200 “friends” do not have full access to the Plaintiff’s Inbox.  Further, the production of the entire Inbox is a far wider production than the “relevancy” standard normally applied.

The lesson from all of these cases is two fold:

1.  The Courts are still coming to grips with the technology over which they are making production orders and in some instances the masters and judges aren’t really able to conceptualize social networking platforms and how they work.  The result are broad orders with little regard for the nuances within social networking websites.

2.  If you’re in, or are entering into, a legal dispute then be careful what you put on Facebook… especially if you have something to hide.

Owen Bourns is a litigation lawyer in Ottawa, Ontario.  He may be reached at 613.566.2823 or at obourns@perlaw.ca.

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