Access to private Facebook pages a question of logistics, not privacy

Defence counsel’s use of private Facebook pages in litigation is not an issue of breaching the plaintiff’s privacy so much as it’s an issue of logistics and the timing associated with accessing information on private pages, Kadey B.J. Schultz, a partner at Hughes Amys LLP, said.
Schultz spoke about obtaining social networking site information on discovery during The ARC Group Canada’s 2011 seminar Litigation and Privacy Challenges in the Electronic Age on Oct. 27 in Toronto.
Recent case law suggests that when a claimant has hundreds of ‘friends’ on the social networking site Facebook, there is no reasonable expectation of privacy regardless of whether or not their profile page is set as ‘private’ so as to only be visible by those friends, Schultz said.
However, defence counsel seeking to obtain photos of the plaintiff or reports of the plaintiff’s activity through these private pages are concerned that the plaintiff will delete the profile and all of the information contained within.
“The real challenge with the courts right now, particularly in Ontario, seems to be where there is no questioning in advance of the discovery or at the discovery about Facebook-specific questions and [then], after-the-fact, the defence is trying to access the [private] Facebook pages,” she said.
“So when you are trying to balance the timing and preservation of the materials out of concern that the plaintiff is going to pull everything off of Facebook, you must think that, by the time of discovery at least, it’s important to have captured [the request for the Facebook pages] onto the transcript if you do have to bring a motion later on with respect to production or preservation of the Facebook materials.”
Schultz said a “balancing exercise” has to be done. “How much information can you access and how should you do it?” she said. “Should you access the information from the very beginning? I say absolutely yes, get on it from the very beginning.
“But long before you get to the examinations for discovery, make sure you have gone about it with clean hands, using the Rules of Civil Procedure to help in your attempt to secure and preserve the information.”