Facing the Facts on Facebook

Facebook is becoming a commonly accepted tool of communication in today’s electronic world and can be considered a source of critical evidence in a motion. It is essential that this information is properly identified early in the process and preserved to ensure its integrity.

Facebook allows users to post profile information, photographs and videos for viewing by a select (or not-so-select) audience, post updates of activity and allow for conversations between users. Clearly, this might be relevant and useful information about a person who is making an insurance claim based on some form of limitation or incapacity in the wake of an injury.

The issue is how to access and use the informa- tion. Facebook has privacy settings. A person can limit the availability of information to select users designated as “friends” (a private profile). Private profiles will not be accessible by defendant insurers.

Rule 30 of the Rules of Civil Procedure governs the disclosure of documents within an action in Ontario. There is an 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 document unless privilege is claimed. Parties are obliged to produce sworn affidavits of documents and supplementary affidavits of documents to address subsequently-obtained, non-privileged documentation or inaccuracies. If the court is satisfied that a relevant document might have been omitted, or that a claim of privilege has been improperly made, it could order:

• cross-examination on the affidavit of documents;

• service of a further and better affidavit of documents; or

• disclosure or inspection of the document.

CASE LAW

Kourtesis v. Joris

The Ontario Superior Court of Justice first reviewed the issue of the admissibility of Facebook information in Kourtesis v. Joris. 1 Damages were claimed for a loss of enjoyment of life, among other things. The court heard evidence that the plaintiff’s social and recreational activities were limited. After evidence in chief, the defendant determined that the plaintiff maintained a Facebook page. The page was restricted to her ‘friends.’ However, counsel was able to access the plaintiff’s cousin’s page, where the plaintiff posted post-accident photographs that depicted her dancing and performing other recreational activities. The defendant sought to introduce the photographs into evidence. Since the plaintiff had put her enjoyment of life in issue, and given that she had previously produced pre-accident photographs, the Facebook photos were admitted, with leave to recall the plaintiff. The jury awarded the plaintiff Cdn$45,000 for general damages. Still, the defendant’s threshold motion was granted, with comment that the photographs supported the conclusion that the plaintiff continued to have an active social life and continued to enjoy life. 2

Murphy v. Perger

The Ontario Superior Court went on to consider the issue of the production of information from a private Facebook page in Murphy v. Perger. 3 Again, damages were claimed for a loss of enjoyment of life. Defence counsel became aware that the plaintiff maintained a private Facebook page. The plaintiff deemed 366 users to be her ‘friends.’ Counsel also located a publicly accessible page, maintained by the plaintiff’s sister, that contained photographs of the plaintiff engaged in social activities and text posted therein made reference to the plaintiff’s activities and referred to her as the “life of the party.”

The defendant brought an ex parte motion for the preservation of the site. The motion also sought production of the information on the page. The preserva-tion order was granted. Ultimately, the photographs and information posted on the plaintiff’s Facebook page were confirmed to be ‘documents’ as governed by Rule 30. The defendant was not able to provide details of what was posted, since the contents of the page were private. Plaintiff’s counsel argued that without knowing what was on the page, the defendant was merely embarking on a fishing expedition; the plaintiff had an expectation of privacy related to what was posted on her page. The judge agreed with the defendant that it was likely the site contained relevant information. She dismissed the plaintiff’s privacy argument on the basis that the plaintiff had granted 366 ‘friends’ access to the site.

Production of the information was ordered. A similar order was granted in Wice v. The Dominion, 4 an action for accident benefits, in which the plaintiff’s functional abilities were an issue.

Leduc v. Roman

In Leduc v. Roman, 5 the court delved further into the issues of the access to and the production of material contained in ‘private’ Facebook pages. Again, a plaintiff claimed a loss of enjoyment of life. The plaintiff was not asked about Facebook at discovery. A medical report, received after discoveries, made note of the plaintiff’s use of Facebook and that he had a lot of friends on the site. The page was private. The defendant brought a motion for a broad spectrum of relief, including interim preservation of the information on the site, production of the information on the site and a supplementary affidavit of documents.

On the initial return of the motion, the case management master ruled that the Facebook pages were “documents” and that they were within the power and control of the plaintiff. The master also conceded that the pages might be relevant, since they related to the plaintiff’s post-accident activities. Nevertheless, he declined to order production of the information. He held that the defendant bore the onus to show that there were relevant documents on the website, not just that there might be. The master characterized the defendant’s request as a “fishing expedition” and ordered that the plaintiff serve a supplementary affidavit of documents.

On appeal, Justice D.M. Brown agreed with the comments in Murphy, 6 concluding the court can infer that Facebook users will take advantage of the different applications, including photographic applications, and that users share information about themselves. However, he also indicated in his ruling that mere proof of the existence of a Facebook page does not entitle a party to gain access to all information contained on the page. He noted some material may relate to matters in issue, and some may not. He confirmed that some evidence of relevance must be adduced. Leave was granted to cross-examine the plaintiff on his supplementary affidavit of documents as to the content of his Facebook page.

USING FACEBOOK

The potential effect of candid information posted by a plaintiff in weakening evidence pertaining to a lessened enjoyment of life following an accident can be seen in the Ontario cases discussed herein. The phenomenon of using Facebook for evidence is emerging in case law from across the country. 8 But it is difficult to know with any certainty what information will be present, and whether to proceed with motions for production.

The recent case of Schuster v. Royal & SunAlliance9 highlights the difficulty. In Schuster, the court refused to draw an inference that the site contained relevant information merely because of the nature of Facebook. However, the plaintiff was obliged to serve a supplemental affidavit of documents and leave was granted to cross-examine. Insurers will want to be selective, choosing cases in which the plaintiff appears especially active, with many “friends,” and there is some indication of what material may be present from either discovery evidence or the sites of family and friends.

It is fundamental to perform searches of plaintiffs in an effort to determine their status on social networking sites. Early searches and preservation should be performed on every file and updated on a periodic basis. Searches should also be performed in re
spect of a plaintiff’s family members and friends, since information about a plaintiff might also be present therein. Information secured should be preserved in a forensic manner where possible.

Keep in mind that searches must be performed without making direct contact with a plaintiff. There are ethical concerns in making direct contact with a plaintiff who is represented by counsel. One should not ask to be made a ‘friend’ on a plaintiff’s page, write on a plaintiff’s wall (if the profile is open), or ‘poke’ a plaintiff, as this will communicate to the plaintiff that you are wishing to make contact.

1 Kourtesis v. Joris, [2007] O.J. No. 5539 (Ont. S.C.J.)

2 see Kourtesis v. Joris, [2007] O.J. No. 2677 (Ont. S.C.J.)

3 Murphy v. Perger, [2007] O.J. No. 5511 (Ont. S.C.J.)

4 Wice v. The Dominion of Canada General Insurance Company, 2009 CanLII 36310 (Ont. S.C.J.)

5 Leduc v. Roman, [2009] O.J. No. 681 (Ont. S.C.J.)

6 Ibid

7 Kent v. Lavadiere, [2009] O.J. No. 1522 (Ont. S.C.J.)

8 see for example: Bishop v. Minchiello, [2009] B.C.J. No. 692 (S. C.J.) and Terry v. Mullowney, [2009] N.J. No. 86)

9 Schusterv. Royal&SunAlliance, 2009 CanLII 58971 (Ont. S.C.J.)

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Since the plaintiff had put her enjoyment of life at issue, and given that she had previously produced pre-accident photographs, the Facebook photos were admitted.

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Mere proof of the existence of a Facebook page does not entitle a party to gain access to all information contained on the page.