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    Blakes: Facebook Not So Private? Ontario Court Finds Facebook Profile Discoverable

    Tariq Remtulla of Canadian law firm Blakes writes about Leduc v. Roman, in which “the Ontario Superior Court of Justice made an order permitting the defendant to cross-examine a plaintiff in a motor vehicle accident suit […] regarding the kind of content he posted on his private Facebook profile.” Plaintiff Leduc claimed his enjoyment of life was reduced after the accident, and the defendant sought information on the plaintiff’s lifestyle post-accident. (There have been a number of privacy questions with Facebook, MySpace and other social networking sites. See my posts in the archives for more information.)

    It was argued that the defendant was merely fishing for evidence, that the existence of plaintiff Leduc’s Facebook profile did not necessarily mean that the profile contained evidence relevant to Leduc’s lifestyle and the case. 

    Justice Brown disagreed, stating: “With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.” [para. 32]

    Justice Brown also found that [there was an error] in dismissing the motion to produce without affording the defendant an opportunity to cross-examine Mr. Leduc […] about the kind of content posted on his Facebook profile. Justice Brown felt that: “[t]o 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.” [para. 35]

    What does this mean for Facebook users in Canada?

    The Leduc v. Roman decision serves as a reminder that if a party posts on Facebook, or any similar website, content that relates to any matter in issue in an action, that party must identify such content in his affidavit of documents, given that data and information in electronic form, such as Facebook profiles, are producible as “documents” under the Rules of Civil Procedure. Lawyers must also be mindful of this when advising clients in preparing their affidavit of documents: Justice Brown noted that “it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on a party’s Facebook profile may be relevant to allegations made in the pleadings” [para. 28] and, if so, are producible, given the widespread use of Facebook and the large number of photographs posted on Facebook profiles.

    While a number of Canadian cases have addressed the issue of the discoverability of Facebook profiles, the majority of these dealt with the disclosure of publicly available content. The Murphy v. Perger and Leduc v. Roman decisions are significant given that it appears courts are willing to extend discoverability by inferring the likely existence of relevant documents on a limited-access Facebook profile by the mere existence of a publicly available profile. In Leduc v. Roman, the court went a step further by ordering a party to be cross-examined about the nature of content posted on his limited-access Facebook profile.

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