by Sandra Weber, Partner, McLennan Ross LLP In the Ontario case of Leduc v. Roman, the Plaintiff was claiming damages from a collision in February 2004. The Plaintiff alleged that his enjoyment of life was reduced and that he could no longer participate in sporting activities. At discoveries in November 2006, no questions were posed about Facebook. However, during a defence IME, the Plaintiff revealed that he had many Facebook friends. Defence counsel determined that the Plaintiff had a Facebook account but access to the account was restricted to the Plaintiff's “friends”. The Defence applied for production of all information on the Plaintiff's Facebook profile. At the original application, the Master concluded that while the Facebook profile may contain information relevant to the Plaintiff's allegations and that the pages on the profile were certainly documents within the Plaintiff's control, he was of the view that in this case, the Defendant had not established that the Plaintiff actually had relevant material on the site. He noted that no questions had been asked at the discovery to demonstrate this and as such, he characterized the efforts of the Defendant as a “fishing expedition” and declined to grant the order for production. However, a consent order was granted allowing the Plaintiff to file a Supplementary Affidavit of Documents and the Master directed that if the Plaintiff had posted “lifestyle information” on his Facebook profile, those documents should be listed in the Affidavit “even if contrary to his interests in this action.” On Appeal, Brown J. agreed with the Master that Facebook materials meet the tests of relevance and producibility. He stated: "Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party's counsel to explain to the client, in appropriate cases, that documents posted on the party's Facebook profile may be relevant to allegations made in the pleadings." While Brown J. held that the Master correctly stated the law re the Plaintiff's obligation to produce relevant materials, he did not agree that the Defendant was on a fishing expedition. Referencing an earlier case, he stated that with the extensive use of Facebook as a social networking site and its use for posting pictures and personal information, it was reasonable to infer that a Plaintiff's site would contain relevant material. He altered the Master's decision to allow the Defendant to cross-examine the Plaintiff on his Supplementary Affidavit of Documents in order to explore the relevance of the material he had posted on his site. Brown J. stated that it is now “beyond controversy” that Facebook and other online social networking sites may contain relevant material. In support of this, he referred to prior cases in which Facebook photographs were introduced as evidence of a party's ability to participate in sports or their ability to work. However, Leduc v. Roman was concerned with access-limited material as opposed to publicly accessible material. The court concluded the nature of the access did not impact the issue of relevance; the Plaintiff's obligation to produce relevant material is the same regardless of whether the profile is public or private. On this, Brown J. stated: "To 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." Plaintiffs, Defendants and their respective counsel will need to be aware of the implications of these cases when producing documents and going through the discovery process. This alert is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Alexis Moulton or Dave Risling, or any other member of our Insurance Practice Group for further advice on this or any other Insurance Law matter. |
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