Beware of Facebook

It is a fundamental aspect of our civil justice system that parties to a lawsuit are required to make available to their opponent any relevant document relating to the matters in issue in the action. It does not matter if the document helps or hurts the cause, it must be produced. Lawyers, and particularly insurance lawyers defending personal injury claims, are waking up to the relevance of social media sites such as Facebook. The argument goes like this: “You Mr. or Ms. Plaintiff are claiming that injuries suffered in the accident have interfered with your quality of life. We would like to see how you portray yourself in your communication with friends on Facebook.”

In a thoughtful decision, Justice David Brown of the Ontario Superior Court of Justice had occasion to consider this argument in a recent case called Leduc v. Roman, 2009 CanLII 6838. Mr. Leduc had been involved in a car accident in February 2004. He brought an action claiming that his enjoyment of life and ability to engage in sports had been adversely affected. The defence lawyer conducted a search and learned that Mr. Leduc maintained a Facebook account. The profile available to the public showed only his name and picture. Access to the site was restricted to “friends” of Mr. Leduc. The defence brought a motion for production of information on the site. A Master of the Superior Court dismissed the motion, characterizing it as a “fishing expedition.”

Justice Brown heard the resulting appeal. He started by outlining some basic facts. Facebook is a social media website with 70 million users as of June 2008. More than 14 million photos are uploaded daily. Users can create a wall on which friends share messages with each other. Justice Brown quoted from an earlier decision on the important issue of privacy: “I have concluded that any invasion of privacy is minimal and is outweighed by the defendant’s need to have the photographs in order to assess the claim. The plaintiff cannot have a serious expectation of privacy given that 366 people have been granted access to the private site.” Justice Brown went on to articulate a rule for future cases: “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.”

Mr. Leduc was ordered to deliver a further affidavit of documents and the defence lawyer was permitted to cross-examine on the affidavit so as to discover precisely which of the contents on the private site were relevant to the issues in the action. Justice Brown concluded by making the following observation: “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.”

With these observations in hand, it seems to me that parties to a lawsuit should indeed now beware of Facebook.