Canadian Underwriter

Capture Facebook evidence early, defence counsel cautioned

October 8, 2009   by Canadian Underwriter

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Insurance defence counsel should tread carefully when it comes to preserving evidence obtained on social networking sites such as Facebook.
Speaking at the Canadian Defence Lawyers’ 2nd annual Accident Benefits Experts Seminar in Toronto, panelist Jennifer Malchuk of Hughes Amys LLP said insurers need to act quickly to preserve evidence obtained on Facebook in order to prevent plaintiffs from closing an open portion of the Facebook site or deactivating the account altogether. 
“Even now, if I’m going into discovery and a plaintiff has an open site, I’m really hesitant to ask about the site,” Malchuk said. “Because I have had it happen where I asked a plaintiff about a closed site, and when I went back to look at it again, all of the friends’ sites were shut down, they were all closed, so I couldn’t get anything out of the friends anymore, and she changed her name, started using her married name, and moved her account. That’s what happens when it’s closed.”
Case law around Facebook is making it clear that insurers are not likely going to be able to use evidence obtained from social networking sites like Facebook unless counsel ask questions about it during an examination for discovery of a plaintiff.
That raises tactical issues for defence lawyers, who want to make sure the evidence coming from Facebook is not subject to tampering. 
Under Ontario’s new Rules of Civil Procedure, due to take effect on Jan. 1, 2010, if an insurance defence counsel waits until discovery to ask a plaintiff questions about their Facebook page, it will be too late to make a motion to preserve the evidence for trial.
And yet, if a defence counsel makes it part of his or her discovery plans to ask questions about Facebook, that might tip off plaintiffs to close Facebook accounts, thereby making it more difficult to obtain evidence and thus creating a spoliation-of-evidence issue.  
“When someone has an open site, and they tend to have a lot of information on it, I have been staying away from asking them on discovery,” said Malchuk.
“What I will do is the morning of discovery, I will print out everything so I have it, just in case something does happen and they shut [the site] down. I think it’s taking a risk if you get shut down after the fact.”
Malchuk suggested insurers cover themselves off by hiring a third-party computer forensics expert as early as possible in the process, in an effort to preserve evidence.
Information captured early can then be used as a yardstick to determine whether or not the plaintiff had changed their Facebook status or tampered with the evidence upon learning that an insurer planned to use Facebook evidence against them.

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