We would like to thank our colleague, Jordan Fox for his invaluable assistance in researching and drafting this article. Jordan is an associate in Cozen O’Connor’s Commercial Litigation Department in Philadelphia and can be reached at jfox@cozen.com. In turn, Tom Wilkinson currently serves as President of the Pennsylvania Bar Association and is co-editor of the Pennsylvania Ethics Handbook, a comprehensive review of the rules of conduct governing lawyers, with extensive citations to case decisions and ethics opinions addressing all aspects of lawyer-client relationships. Tom can be reached at twilkinson@cozen.com.
Thanks guys!
Rick
As users constantly update their Facebook and other social networking profiles, they may be unwittingly doing something else as well: creating a cache of evidence for a future adversary to use against them in discovery and at trial. Trial courts have increasingly allowed parties to discover the private portions of social networking sites when doing so would likely lead to the disclosure of admissible evidence.[1] In the common scenario, a party observes information on the public portion of their adversary’s profiles that tends to undercut that adversary’s claims—such as pictures of a plaintiff skiing after claiming to have devastating injuries—and present such information to the court as the “factual predicate” that establishes the potential relevance of the private profile.[2] While most courts will not allow a party to simply conduct a “fishing expedition” into their adversary’s private digital lives, nor will they declare such information categorically undiscoverable.[3]
The following article, written by my colleague Nicole Moody, first appeared in the Chicago Daily Law Bulletin. Thanks to Nicole for allowing us to republish it here.
Rick Bortnick
Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued to see that we have a friend request. Who could it be? An acquaintance from the past? A new colleague who we met at work? Whoever it is, we know that by accepting the request we will be granted access into this individual’s life and will know more about them in five minutes than we would know in a lifetime of small talk.
Due to the use of usernames and passwords, there is a belief that information shared on Facebook is confidential unless publicly shared. However, courts around the country are now addressing just how private this information really is.
In cases nationwide, litigants are asking courts to grant unfettered access to other parties’ Facebook or other social media accounts. Inevitably, in the age of status updates and hashtags, poking and friending, the lines between public and private information have become blurred. This trend has become increasingly prevalent in the insurance industry as insurance companies have realized the usefulness of social media in litigation.
Needless to say, the discoverability of social media posts is an important issue for litigants on both sides of the “v” and will continue to be the subject of fiercely-litigated motion practice. We will monitor the issue and post updates as courts across the country rule on this imporant, oftentimes substantively dispositive, issue.
Rick Bortnick
One of the high-profile battles being fought in the social media world continues to be over the ability of one party in a lawsuit to compel the other party to produce messages, posts, pictures, and other “private” things done over a social networking site like Facebook. The trend continues to reveal that courts are willing to compel disclosure in the right circumstances, and the most recent decision issued by a New York appellate court is no different.
In Patterson v. Turner Construction Company (New York Supreme Court, Appellate Division, First Department, October 27, 2011), the plaintiff sued for personal injury damages that included physical and psychological injuries that he claims to have suffered. During the lawsuit, the defendant asked the court to direct the plaintiff to provide an authorization allowing defendant to obtain “all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived[.]” The plaintiff, obviously, fought that request.
Posted December 2nd, 2011 by Andrea CortlandcloseAuthor: Andrea CortlandName: Andrea Cortland Email: acortland@cozen.com Site: About: Andrea Cortland joined Cozen O’Connor’s Philadelphia office in September 2009 as an Associate in the Global Insurance Group. Prior to joining the firm, she participated in the Cozen O’Connor Summer Associate Program.
Andrea earned her law degree, magna cum laude, from the University of Miami School of Law, where she was Symposium Editor of the University of Miami Inter-American Law Review, a member of the Moot Court board, and a Dean's Fellow in the Academic Achievement Program. She organized a symposium entitled "Righting Wrongs? The Inter-American System of Human Rights after 50 Years," in celebration of the 30th anniversary of the Inter-American Court of Human Rights, the 40th anniversary of the American Convention on Human Rights, and the 50th anniversary of the creation of the Inter-American Commission on Human Rights. The symposium discussed the roles the court and commission have played in furtherance of human rights throughout the Americas and addressed current areas of concern. Andrea also wrote a comment note, "United States v. Burns: Canada's Extraterritorial Extension of Canadian Law and Creation of a Canadian 'Safe Haven' in Capital Extradition Cases," which was published in Volume 40 of the University of Miami Inter-American Law Review in Fall 2008.
Andrea earned her undergraduate degree, summa cum laude, from the Rutgers College Honors Program of Rutgers University.See Authors Posts (3)
“Facebook helps you connect and share with the people in your life.” That is the Facebook mantra, as displayed on its homepage, and the opening line of a recent – and extremely thorough! – Pennsylvania trial court decision regarding the discoverability of a plaintiff’s relevant Facebook information. The court’s conclusion: a plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material, because there is no confidential social networking privilege under Pennsylvania law and because the Stored Communications Act only applies to internet service providers. The take-away for Facebook users: be careful what you post – it’s not as “private” as you think!
I recently attended a CLE that had a panel of social media experts who were discussing the role of Facebook, Twitter and MySpace in litigation. During a lull in the question and answer session, the Facebook attorney quipped: “you know, Facebook has already given you everything that you’ve ask for…” Immediately, the audience lifted their heads from their Blackberries and newspapers and started paying attention after this cryptic remark.
First published on September 22, 2011 at e-Discovery Law Review Monetary sanctions, attorneys fees, and adverse inference jury instructions are the more common type of sanctions imposed on litigants for the spoliation of evidence, or not producing relevant documents. Recently, however, a court has increased the severity and impact of sanctions by applying them not only to current litigation, but also to a party’s future litigation, with the effects lingering for years to come.
The Underlying Suit
“Any competent electronic discovery effort would have located this email.” These words were written in an opinion by a United States District Judge in the Eastern District of Texas in Green v. Blitz U.S.A., Inc., No. 2:07-CV-372 (E.D. Tex., Mar. 1, 2011) Green involved a product liability suit in which the requirement of a flame arrester was in dispute. The jury returned a defense verdict, and the plaintiff collected a low settlement amount as part of a high-low settlement agreement. During discovery in a subsequent case with the same defendant and plaintiff’s counsel, counsel learned of documents that were not produced in Green. The plaintiff then filed a motion for sanctions against the defendant in Green and a motion to re-open the Green case. While the court denied the motion to re-open because the statute of limitations had expired, the court did impose sanctions for the discovery abuse.
The Clerk for the U.S. District Court for the Eastern District of Pennsylvania recently ruled that there is a heavy presumption that prevailing parties may recover certain e-discovery costs under 28 U.S.C. § 1920. Federal Rule of Civil Procedure 54(d)(1) allows prevailing parties to submit bills of costs for certain expenses, enumerated in 28 U.S.C. § 1920, for taxation by the Clerk against the non-prevailing parties. For example, that statute provides for the taxation of costs related to obtaining copies of transcripts and printing. More significantly, the statute provides for the taxation of “[f]ees for exemplification and the cost of making copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). While the term “exemplification” is undefined, federal district clerks have traditionally awarded, as exemplification and copying costs, those costs related to the production of paper documents, photographs, models, maps, blow-ups, charts, and diagrams.
In a recent decision, a Pennsylvania trial court concluded that no privilege exists to prevent access to non-public social website information of personal injury claimants. Rather, the “paramount ideal” of pursuing truth favors liberal discovery of relevant information on social media sites.
In Zimmerman v. Weis Markets, No. CV-09-1535 (C.P. Northumberland Cty., May 19, 2011), the court rejected a personal injury plaintiff’s objections to providing non-public portions of plaintiff’s Facebook and MySpace pages, after the defendant demonstrated that the public portions of those pages included recent photographs and comments that appeared to contradict the plaintiff’s claims of physical and emotional distress. The court agreed with the rationale stated in other recent cases holding that an individual who voluntarily posts photos and information on social networking sites does so with the intention of sharing, and thus cannot later claim any expectation of privacy. The court noted that the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user’s own risk.
Just as lawyers now routinely conduct due diligence on opposing parties’ social media pages. some lawyers also are monitoring postings by jurors on social media sites.
In a recent ethics opinion issued by the New York County Lawyers’ Association Committee on Professional Ethics (No. 743, 5/18/11), the committee concluded that an attorney may review jurors’ postings on publicly available social networking sites during trial. But they must not “friend” or “tweet” jurors, subscribe to their Twitter accounts, or otherwise contact them, either directly or through others.
It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes. The posts and photos may show a party to be lying about the extent of his or her claimed injury or disability, or they could undermine or support other claims. Facebook and other social media sites also have become fertile ground for cutting edge ethical questions posed to state Bar ethics committees.
In a recent ethics opinion issued by the San Diego County Bar Association, a lawyer asked if it was proper to “friend” request high-ranking employees of a company the lawyer was suing on behalf of a former employee pursuing a wrongful discharge case. The lawyer believed that these high-ranking employees were dissatisfied with the company and likely had been posting negative information on their social media pages that were accessible only to those persons who had been accepted as “friends”.
During the last decade, individuals and business have changed the way they manage their data by moving this data management offsite – otherwise known as cloud computing. This differs from the old model of information management that, more or less, mirrored the pre-computing era, meaning that an employee’s file might be kept in a cabinet in a Human Resources (“HR”) office or stored on a company’s in-house server. With cloud computing, however, that same employee file may be stored hundreds or thousands of miles away from the HR officer who needs to review it – or the IT officer tasked with preserving that data for potential litigation.
As discussed more fully in Rick Bortnick’s prior posts (here and here), cloud computing outsources data and software management, migrating it from the local to the global by providing instant access over the internet. According to the National Institute of Standards and Technology, cloud computing has five primary characteristics: (1) “on-demand self-service,” or the ability to call up stored data or capabilities as needed; (2) broad network access through a variety of platforms; (3) pooling resources providing “location independence”; (4) “rapid elasticity” in the distribution of computing capabilities, and (5) “measured service,” or service-appropriate control and optimization by the cloud system manager rather than the local user. It is the pooling of resources and the measured service managed by third-parties that pose the greatest risks during e-discovery. Read the rest of this entry »
On January 20, 2011, a federal class action lawsuit was filed against MySpace in the United States District Court for the Eastern District of New York. If successful, this new lawsuit could have dramatic implications for social networking sites and their users. Either way, it provides another opportunity to make a couple of privacy-related points for employers.
The MySpace lawsuit was filed on behalf of all former and current users of MySpace, who seek damages for the alleged improper and voluntary disclosure of personal and private information and data in response to foreign court search warrants without the knowledge or authorization of the MySpace users. The class alleges that search warrants issued by state judges for certain information have no force and effect when they are issued to MySpace’s California headquarters from other states, but that MySpace nevertheless provided responsive information and data voluntarily.
We have all heard a story about some unfortunate personal injury lawyer who forgot to remind his client that ‘what happens in Vegas stays on YouTube’. Personal injury and family lawyers are becoming highly attuned to the crucial role that social media websites can play in civil litigation.
Yet when it comes to cases involving property damage, it appears that lawyers and other subrogation professionals have overlooked the potential utility of these sites in advancing their case. This post highlights some important ways in which YouTube can play a role in a subrogated claim for property damage.
1. A Search Engine for Video Evidence
YouTube is the second largest search engine in the world. As of March, 2010, twenty-four hours of video was being uploaded to YouTube every minute. To put this in perspective, consider that more video is uploaded to YouTube in 60 days than all three major news networks have created in 60 years. [1] What does this mean? If you have a property damage claim, stop for a minute and think about whether it was an event that was likely to warrant a second glance. Were there flames? An explosion? Did a massive wall of water sweep over the property, obliterating all before it? In that case, it is likely that someone not only had taken that second glance, but pulled out his or her cell phone, recorded a video clip, and posted it on YouTube. Check it out. Simply enter the loss date, location and a one-word description into YouTube’s search engine and you may discover valuable evidence that can provide crucial insights into the loss.
Pamela Pengelley, our resident expert on Facebook, is now internationally recognized for her expertise.
Most recently, Pamela was quoted in an article published by Law 360 entitled “Poking Around Facebook Could Win Your Case.” According to Pamela, “‘Lawyers are realizing [Facebook] is a gold mine of information…it’s pretty much standard that you subpoena Facebook when you get a personal injury action. It’s not a substitute for having a private investigator, but people will put up incriminating photos online without realizing that there can be consequences in a lawsuit.’”
Pamela further observed that Facebook is “most effective in lawsuits where plaintiffs are claiming an injury, such as when their health or ability to work has allegedly been impaired”.
Kudos to Pamela. Where will her sage words of wisdom appear next?
So you want to get production of documents from Facebook to assist you in your civil case. How do you go about it? We asked and Facebook answered.
Well, first off, you are going to need a court order (subpoena) to obtain the information. In the U.S., Facebook users’ data is protected by the Electronic Communications Privacy Act (“ECPA”). See 18 USC section 2701 et. seq. ECPA is a federal statute that prohibits Facebook from producing any “content” without notarized user consent or a Search Warrant. Facebook’s Law Enforcement Response Team has advised that, with regard to civil matters:
State Court Subpoenas must issue from a court within California or must be issued pursuant to the proper California court commission.
Federal Civil Subpoenas seeking the production of documents must issue from the court in the district where the production is to be made.
Facebook states that it requires a $150 processing fee per User ID. Checks can be made payable to Facebook, Inc. and can be sent to the attention of Facebook Security at 1601 S. California Ave., Palo Alto, CA, 94304, bearing the name and number of the case for which the fees are paid.
In addition to a valid subpoena, Facebook advises that as much of the following information as possible should be provided in order to expedite a request:
Your full contact information (name, physical address, phone and email)
Response date due (please allow 2-4 weeks for processing)
Full name of user(s)
Full URL to Facebook profile
School/networks
Birth date
Known email addresses
IM account ID
Phone numbers
Address
Period of activity (specific dates will more likely expedite your request)
It takes Facebook approximately 2-4 weeks to respond to questions from law enforcement agencies or legal representaives about the status of these requests. If Facebook is informed and has a good faith belief that the matter is an emergency regarding potential threat of serious bodily harm or threat to life (see Title 18 United States Code section 2702(b)), they generally respond within 24 hours.
Facebook advises that if you are not a member of a Law Enforcement Agency or Legal Department, you will have to contact Facebook through their Help Page or have your local law enforcement or legal representative contact them. Some other helpful Facebook links are as follows:
A New Decision on Facebook: Ex Parte Injunctions and Preservation Orders
Another Ontario decision dealing with production of Facebook profiles in personal injury lawsuits was released on October 29, 2009. In Schuster v. Royal & SunAlliance Insurance Company of Canada, the defendant brought a motion before a judge, without notice to the plaintiff, seeking an injunction requiring the plaintiff to preserve and produce her Facebook webpage. The particulars of the decision are set out in detail, below.
The plaintiff claimed that, as a result of a car accident, she suffered injuries that impaired her ability to work and to participate in social and recreational activities. During litigation, she produced an “affidavit of documents” (a sworn list of all documents in a party’s possession, including electronic documents, that are relevant to the lawsuit) in which she failed to disclose the existence of her Facebook account.
The defendant hired a surveillance company and discovered the Facebook account, for which access was restricted to 67 “friends”, one being the plaintiff’s mother-in-law. The defendant was able to obtain photographs from the mother-in-law’s Facebook account in which there were pictures of the plaintiff dated before and after the accident, although she was just standing, sitting or reclining (she was not engaged in any activities in relation to which she claimed to be impaired).
The defendant had brought the motion on an ex parte basis (that is, without notice to the plaintiff) seeking anInterim Order for the Preservation of Property under Rule 45.01 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194). (Ex parte motions are typically granted where urgency arises because there is a reason to believe that the responding party, if given notice of the motion, will take steps to frustrate the process of justice before the motion can be decided). Rule 45.01 states:
INTERIM ORDER FOR PRESERVATION OR SALE
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party. R.R.O. 1990, Reg. 194, r. 45.01 (1).
(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just. R.R.O. 1990, Reg. 194, r. 45.01 (2).
The Court noted that Rule 45.01(1) is “typically used to ensure that important documents, information or other items are preserved and available for the trial of an action where there is a strong likelihood that the defendant would destroy this evidence once notified of the proceedings”. As a result, an order under Rule 45.01 is similar to a civil search warrant and therefore subject to a higher threshold test than an “ordinary” ex parte injunction, pursuant to s. 101 of the Courts of Justice Act (“CJA”). (Note that Rule 40 of the Rules of Civil Proceduresets out the procedure to be followed in order to obtain an order under s. 101 of the CJA).
Justice Price noted that it was unclear whether the defendant was seeking access to just the web site, or the preservation and production of the website contents, and noted that an order granting the defendant access to the site would be far more invasive than ordering the plaintiff to preserve the contents of the site. Since an order granting the defendant access to the plaintiff’s Facebook account would have required the plaintiff to provide her username and password to the defendant (and was beyond the scope of her obligation to disclose relevant documents), the Court proceeded on the assumption that the defendant was only seeking an order for preservation of the site.
Justice Price then considered whether the defendant had met the test for an ordinary ex parte injunction under s. 101 of the CJA:
101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)
Terms
(2)An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2).
In considering whether to grant the interlocutory injunction, Justice Price applied the test set out by the Supreme Court of Canada inR.J.R. Macdonald Inc. v. Canada (A.G.):
1.) Is there a serious question to be tried? Judge Price found that there was a serious question to be tried, namely, the extent to which the accident had prevented the plaintiff from earning and income and engaging in recreational activities.
2.) Will the applicant suffer irreparable harm if the application is not granted? This is usually determined by considering whether damages will be an adequate remedy. In this case, the defendant argued that without the content of the Facebook webpage, it woudl be deprived of the opportunity to properly respond to the plaintiff’s claim. The Judge disagreed noting that proof of irreparable harm must be clear and not speculative ; there was no evidence that there were incriminating photographs on the plaintiff’s Facebook page. In fact, Justice Price held that since the plaintiff had not listed the Facebook page in her affidavit of documents, the presumption was that this was because the Facebook page did not contain any relevant information. Unlike in previous Ontario cases dealing with Facebook production, in this case, the judge was NOT prepared to draw an inference from the nature of Facebook itself or the plaintiff’s profile that her Facebook page was likely to contain relevant evidence, stating:
I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant.
3. Whom Does the Balance of Convenience Favor? In weighing the privacy interests of the plaintiff and the defendant’s interest in full disclosure, the court concluded that the balance favored the plaintiff:
The plaintiff’s failure to disclose her Facebook account in her affidavit of documents should give rise to the presumption that the information on the webpage is not relevant to the litigation – the defendant has the opportunity to rebut this presumption by cross-examining her on her affidavit of documents if it so chooses.
The defendant had been at liberty to question the plaintiff about her Facebook account at her examination for discovery.
There was no evidence to support the defendant’s proposition that the plaintiff was likely to delete any relevant contents of her Facebook profile pending trial.
The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends”. She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.
As a result of the foregoing, the Court concluded:
The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.
The Court did decide, however, that ”[b]ecause Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it”, the Court was prepared to grant the defendant a further opportunity to cross-examine the plaintiff on her affidavit of documents if it chose to do so.
A British Columbia Court agreed that a plaintiff’s late night computer usage on Facebook was relevant to his claim that he was unable to work. The Court ordered production of his computer hard drive to determine the period of the time he spent on Facebook between 11 p.m. and 5 a.m.
In Bishop v. Minichiello, [2009] B.C.J. No. 692 (S.C.J.), the plaintiff alleged that a brain injury caused him ongoing fatigue which prevented him from being able to maintain employment. The defendant brought a motion to obtain production of the plaintiff’s hard drive of his family computer so that he could have it analyzed in order to determine the periods of time that the plaintiff spend on Facebook between 11 p.m. and 5 a.m. each day. The defendant argued that the plaintiff’s late night computer usage was relevant to the lawsuit; the plaintiff had told a doctor that he spent a substantial amount of time on Facebook chatting with his friend late at night, and that his sleep varied with the time that his friend went to bed.
On examination for discovery, the plaintiff’s mother had confirmed that the plaintiff was the only person using the family computer between those hours. The plaintiff argued that, at times, his friends could use the computer once he logged into Facebook, and that the hard drive contained information that was irrelevant to the litigation and so should not be produced. Justice Melnick noted, however, that simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose all relevant information. The Court concluded:
Facebook login/logout records are documents stored in electronic form for the purpose of litigation;
The information sought by the defense could have significant probative value in relation to the plaintiff’s past and future wage loss;
The value of production was not outweighed by confidentiality, or time and expense required to produce the documents; and
The order sought was so narrow that it did not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.
Given that not all of the information on the hard drive was relevant, and that privacy issues of other family members might be implicated, the Court ordered that an independent expert was to review the hard drive and isolate and produce the relevant information for the defendant’s counsel.
A married woman in Nevada sued her employer, claiming that he sent her inappropriate emails and gave her unwanted sexual attention. During the lawsuit, the employer’s lawyer discovered that the woman had set up a MySpace account where she pretended to be single. The employer’s lawyer wanted to see her MySpace emails; if this woman was looking for extra-marital affairs on MySpace, this might speak to her credibility. The judge refused.
In a decision of the Nevada District Court, Mackelprang v. Fidelity National Title Agency of Nevada Inc, a married plaintiff alleged that she was sexually harassed by senior members of her company, and that this led to her constructive dismissal. She alleged, among other things, that a vice president of her company sent sexually explicit emails to her office computer a weekly basis. During the course of litigation, the defendant’s lawyer discovered that, a few months after leaving the defendant’s employ, the plaintiff had opened two MySpace accounts; in one of the accounts, the plaintiff identified herself as a single 39 year old female who did not want children, and in another account, she identified herself as a married woman with six children whom she loved.
The defendant’s lawyer obtained a subpoena directing MySpace to produce all records for those accounts, including private email exchanges between the plaintiff and others. In response to the subpoena, MySpace produced the “public” information regarding the accounts, but refused to produce private email messages in the absence of a search warrant or a letter of consent to production by the owner of the account. The plaintiff refused to consent to the obtaining of the release of the private messages on the grounds that the information sought by the defendants were irrelevant to the lawsuit and improperly invaded her privacy. She contended that the defendants were on a “fishing expedition” and that they had no relevant basis for discovering the private email messages on either account.
The defendant’s lawyer brought a motion seeking to compel the plaintiff to consent to production of the emails. The defendant’s pointed to the usual circumstances of the plaintiff’s two MySpace accounts as creating an inference that the plaintiff was using MySpace email to facilitate the same types of electronic and physical relationships that she had characterized as sexual harassment in her lawsuit. If the plaintiff had, in fact, been voluntarily pursuing extra-marital relationships through MySpace, then this information could be used to impeach her credibility and rebut her sexual harassment claims. The emails could telling as to whether the plaintiff had actually suffered emotional distress as a result of the harassment, and might contain admissions relevant to the case.
The Court disagreed with the defendant and refused to order production of the emails. The defendant had nothing more than a suspicion and speculation that the plaintiff may have engaged in sexually related email communications on MySpace. There was an insufficient connection between the accounts and the workplace to make her private emails relevant. The Court noted:
Ordering plaintiff to execute the consent and authorization form for release of all of the private email on Plaintiff’s MySpace.com internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.
The Nevada District Court opined that, although it was theoretically possible that emails on the Myspace account might contain relevant information, the defendant should have limited the request to the production of relevant email communications. The determination of whether certain email communications were relevant could be properly ascertained through the discovery process.
No Canadian case to date has considered a request for the production of Myspace or Facebook emails. It seems likely that Courts will treat these emails differently than the other information on a social network profile; even a “private” Myspace profile is viewable by all a user’s “friends” whereas email is not; consequently, a Court may not be able to infer from the nature of the social network service either the intent to make public, or the likely existence of, relevant email communication. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Myspace or Facebook email communications. It also remains to been seen whether evidence contained in a profile itself could give rise to a sufficiently reasonable inference that that email communications are relevant. For example, if relevant postings on a Facebook wall made express reference to email communications, this might be sufficient to convince a Canadian court to order disclosure, notwithstanding the expectation of privacy surrounding such communications.
In December 2008, after several failed attempts to serve a couple with court documents by email and text messaging their mobile phones, an Australian lawyer won the right to serve a default judgment by posting the terms of the judgment on the defendants’ Facebook “Wall”. In a ruling that appears to be the first of its kind anywhere in the world, Master Harper of the Supreme Court of the Australian Capital Territory held that the lawyer could use the social networking site to serve court notices.1 The Facebook profiles showed the co-defendants’ dates of birth, email addresses and ‘friend’ lists and declared the co-defendants to be friends of one another. This information was enough to satisfy the Master that Facebook would be effective in bringing knowledge of the legal proceedings to the attention of the defendants.2 Facebook, for its part, was quite happy with the result, stating: “We’re pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people’s lives.”3
There is no doubt that Facebook4 is now playing an increasing role in people’s lives. For the few who are unfamiliar with the application, Facebook is a non-commercial “social website” or, as put by its Terms of Use, “a social utility that connects you with the people around you.”5 The site’s “Facebook Principles” state that a user may “set up a personal profile, form relationships, perform searches and queries, form groups, set up events, add applications and transmit information through various channels.”As of June 2007, Facebook had more than 70 million active users, and users over the age of 25 made up its fastest growing demographic.6 If you have a computer, the odds are good that you are one of the now over 140 million people who have posted personally sensitive information onto Facebook or a similar social network site such as Myspace,7Faceparty,8Friendster,9Bebo,10 Badoo,11Habbo,12Nexopia,13Tagged14 and many more.15 If you are a typical user, you network with friends, upload photographs of yourself and your family members, enter your email address and cell phone number, and much more.16
Facebook asserts that this information is “secure and private” and it is possible for a user to adjust their privacy settings to restrict access to a Facebook site. Yet it was just a few weeks prior to the writing of this article that Facebook backed down (for now) following a firestorm of protest regarding a change in its “Terms of Use” to claim ownership over user-generated content in perpetuity even after someone closed or cancelled their account.17 For insurance professionals who handle claims that proceed to civil litigation, this then begs the question; how does a user’s expectation of privacy play out in the litigation context?
Consider that a fully filled-out Facebook profile contains over forty pieces of recognizably personal information, including name; birthday; educational and employment history; online and offline contact information; sex; sexual preference and relationship status; political and religious views; favorite movies, books and music, and of course, pictures.18 Facebook is the largest photo-sharing application on the web with more than fourteen million photos uploaded daily. Facebook further offers multiple tools for users to search out and add potential contacts. In completing a typical Facebook profile, a person will have created a comprehensive database of information about both who they are and who they know.19 This is, for the most part, information that our laws treat as highly private. Not surprisingly, then, courts are struggling to define how the plethora of private information contained in social network websites should be used in litigation. Should a person’s choice to keep their Facebook profile private and share it only with selected “friends” override the right of other litigants to access information that may be relevant to a case?
For professional “fact-gatherers” such as lawyers, insurance adjusters, claims handlers and private investigators, the vast wealth of information that people volunteer on Facebook can be a goldmine or a smoking gun, depending on your perspective. The personal information contained in a Facebook profile may be highly relevant to matters at issue in litigation; when dealing with claims, particularly in the personal injury context, the information contained on a Facebook page can make or break a case. It is therefore crucial that insurance professionals stay informed of new developments in this emerging area of law. This article summarizes the approach currently adopted by Canadian courts.
FACEBOOK AND THE LITIGATION PROCESS
It is important to understand that litigation is a fact-gathering process. In , our procedural rules of litigation facilitate this process in two ways. First, courts place a positive obligation on each party to identify all of the documents in their possession or control that may be “relevant” to issues in the litigation, and to produce each such document unless privilege is claimed over it.20 Second, lawyers are allowed to question a representative of each adverse party under oath – a process referred to as “examination for discovery”. The purpose of these processes is to uncover the facts of a case so that the law can be properly and fairly applied.
How does Facebook fit into these processes? Canadian courts have considered web-based networking sites such as Facebook and MySpace pages to be ‘documents’. If a party posts content on Facebook that relates to any matter at issue in an action, then that party is required to identify the content for the other side.21 In fact, a recent Ontario decision has held that it is now incumbent on lawyers to specifically raise the issue of Facebook profiles with their clients and explain that any relevant material that is posted on such sites will need to be produced in litigation.22
It sometimes happens though, that relevant documents are overlooked or omitted. Facebook profiles are often among these overlooked documents. As noted by one judge, “[t]he concept of Facebook is relatively new. I see no fault on the part of counsel for the Plaintiff for not disclosing the existence of the Facebook page in the Affidavit of Documents. I suspect that when this action was filed in 2004, few people had heard of Facebook.”23 In such instances, here the privacy setting on a Facebook profile has been set to allow public access, few issues arise; anyone who learns of the site can search for and download any relevant information. Problems arise, owever, where access to a Facebook page has been restricted.
Public Facebook Profiles
A number of cases in Canada have already admitted photographs or other information posted on a public Facebook page as evidence relevant to issues raised in the litigation.24 In one case, the discovery of photographs of a party posted on a MySpace page was the basis for a request to produce more photographs that were not posted on the site.25
In Kourtesis v. Joris,26 the plaintiff claimed that, following a car accident, she was unable to engage in Greek dancing, an activity that she had previously enjoyed. During the course of trial, but after the plaintiff had testified, a member of the defence lawyer’s staff happened across the plaintiff’s private Facebook page showing post-accident pictures of her dancing at a party. The lawyer attempted to put these pictures into evidence. In deciding what to make of the photos, the judge decided that the photographs, as “snapshots in time” and “taken out of context,” had only minimal evidentiary weight, but they were still “highly relevant” to the assessment of damages regarding the plaintiff’s claim for loss of enjoyment of life. Further, the photographs were not on the same footing as surveillance photos because, unlike surveillance photos, the plaintiff had control of the photographs on her Facebook site and so she could not be surprised by their existence and content. Finally, the mere fact that the photographs were contrary to the plaintiff’s evidence at trial did not make them “prejudicial”. The judge held, however, that the plaintiff should be permitted to be recalled at trial so that she could have the opportunity to explain them.
Private Facebook Profiles
Canadian courts have mechanisms in place to monitor compliance with the disclosure duty. Where a party has reason to believe that another party has not complied with these disclosure obligations, he or she can ask the court to order disclosure of the documents. However, a court can refuse to order the disclosure of documents where the information is of minimal importance to the litigation but may constitute a serious invasion of privacy.27 A private document is, quite simply, any document that is not public, and includes private Facebook profiles.28 This creates a dilemma for a party seeking production of a private Facebook page: in order for a court to order production of a document, a court requires evidence, as opposed to mere speculation, that a potentially relevant undisclosed document exists. Yet a party is unable to access a private Facebook site in order to determine whether it contains relevant information.
To date, there are two cases in which have dealt with the production of the access-limited contents of a Facebook profile. The first case, Murphy v. Perger, is a decision of Justice Rady issued in October of 2007.29 In that case the plaintiff, Ms. Murphy, was involved in a car accident which, she alleged, caused her to suffer from a chronic pain disorder. She sued the other driver, seeking damages for the detrimental impact on her enjoyment of life and her inability to participate in social activities. Shortly before the trial, the defendant’s lawyer discovered a public website called “The Jill Murphy Fan Club” which contained post-accident pictures of Ms. Murphy at a party. This public webpage led the lawyer to Ms. Murphy’s private Facebook page. The lawyer was able to view Ms. Murphy’s name and a list of her 366 Facebook “friends”, but she had set the privacy settings so that permission was required to view her other Facebook material. The defendant’s lawyer sought production of the Facebook pages (but not the Facebook emails) on the basis that it likely contained relevant information. The plaintiff’s lawyer objected, claiming that the defendant was on a “fishing expedition” because there was only a mere possibility of there being relevant material on the site, and that this was too speculative to justify an order for production given the plaintiff’s expectation that the site would be kept private.
The judge disagreed with the plaintiff’s argument and ordered the Facebook pages to be produced. He concluded that it was reasonable to assume that there would be relevant photographs on the site because www.Facebook.com is a social networking site where a large number of photographs are posted by its users. Since the plaintiff had already put preaccident pictures of herself into evidence, the judge decided that post-accident pictures of the plaintiff would also be relevant. Finally, the judge decided that the plaintiff could not have any serious expectation of privacy given that 366 people had already been granted access to the private site.
The second case to consider this issue is Leduc v. Roman, in which a decision of a Master was appealed to Justice Brown.30 The plaintiff, Mr. Leduc, was involved in a car accident which, he claimed, caused him to suffer various ailments and loss of enjoyment of life. Mr. Leduc underwent a psychiatric medical evaluation and told the defendant’s expert psychiatrist that he did not have a lot of friends in his current area, although he had “a lot of Facebook friends.”This remark apparently went unnoticed by the defence lawyer, for it was not until after Mr. Leduc had been examined for discovery that the defence lawyer’s office was conducting a search of Facebook and discovered that Mr. Leduc had a Facebook account. His publicly available profile showed only his name and picture. Because Mr. Leduc had restricted access to his site to only his Facebook friends, the defence lawyer’s office was unable to view the site.
The defence lawyer requested an up-to-date affidavit of documents from the plaintiff’s lawyer including the Facebook profile. When this was refused, the defence lawyer brought a motion before the court seeking, among other things, (1) an order requiring Mr. Leduc to preserve all the information on the Facebook profile; and (2) production of the Facebook profile itself. Mr. Leduc’s lawyer argued that it would be too speculative to infer that relevant material was posted on his Facebook site merely by proving the site’s existence. He sought to differentiate his case from that in Murphy. In that case there was a public website that posted relevant pictures of the plaintiff, creating a reasonable inference that there was also relevant material on her private Facebook page. In this case, there could be no such inference.
When the matter had first been argued, the Master had granted the preservation order, but had refused to order production of the Facebook profile, holding that the request was a fishing expedition. Justice Brown disagreed. He was of the opinion that a court can infer from the social networking purpose of Facebook that users intend to take advantage of it to make their personal information available to others. He stated:
From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user.
A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter at issue in an action. ….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.
Justice Brown noted that mere proof of the existence of a Facebook site would not entitle a party to gain access to all of the material placed on that site. Some material on the site might be relevant to the action, some might not. In order to gain access to this material, the level of proof required to show that the information may be relevant should take into account the fact that one party has access to the documents and the other does not.32 Judge Brown also noted that a defendant would normally have the opportunity to ask about the existence and content of a Facebook profile during the examination for discovery, and where the answers reveal that the Facebook page may contain relevant content, a court can order that those portions be produced.
Facebook Emails
No Canadian case to date considers a request for the production of Facebook emails. It is likely that Facebook emails will be treated differently than the other information on a Facebook profile; the profile is viewable by all a user’s “friends” whereas email is not. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Facebook email communications. For this reason, a court may not be able to infer from the nature of the Facebook service the likely existence of relevant email communication. That being said, it seems likely that if there is enough evidence in a Facebook profile itself to suggest that email communications may be relevant and probative, this may be sufficient to convince a court to order disclosure.
CONCLUSION
It is important to note that lawyers’ rules of professional conduct strictly prohibit them from making direct contact with parties who are represented by counsel, and this certainly includes contact by way of Facebook. It would be a breach of a lawyer’s duties of honesty and candor to create a false profile in an attempt to elicit information from another party’s private Facebook profile. Similarly, adjusters, private investigators, and claims handlers should be aware that attempts to elicit Facebook information through surreptitious means would likely not be looked upon favorably by a court and may constitute a breach of Facebook’s Terms of Use. Consider the case of Knight v. Barrett.33 In that case, it was unclear how a party had obtained information from another’s private Facebook profile, so the court ordered the party who had obtained this information to include it in their affidavit of documents, and allowed cross-examination on that affidavit so that it could be determined how they had obtained the information. The judge stated that such disclosure would allow both parties to prepare for trial in the same light, and that it was not appropriate for the defendants to seek to ambush the plaintiff with his or her own Facebook page. With this cautionary tale in mind, a number of salient points should be taken from the cases referred to above:
Where a party’s personal information is relevant to an action, insurance professionals should be cognizant of the potential wealth of relevant information available on the Internet. Internet searches, including “Google” searches and searches of common social network websites should be commenced as soon as possible in the course of adjusting the claim. Follow-up searches should be commenced at regular intervals thereafter.
The current case law suggests that many a lawyer has been surprised to learn that his or her own client maintained a Facebook page, and this fact was not brought to their attention until very late in the litigation. Thus, internet searches should be performed not just on opposing parties, but also on one’s own insured/client.
Insurance professionals should ensure that their insured understands that Facebook profiles are producible “documents”, and that any relevant content that is posted on a Facebook profile will need to be disclosed, and preserved in order to avoid spoliation issues.
Facebook pages are dynamic – where relevant material is discovered, this material needs to be preserved. Webpages should be downloaded, saved and dated. High-quality colour copies of these pages should be printed out for future use in litigation.
Depending on the circumstances, it may be prudent to obtain a preservation order respecting the content of a Facebook page or other social network profile – for this reason, it is highly recommended that a lawyer who is experienced in these matters be consulted and involved early on in the investigative stage of a claim.
As observed by Mitchell Kapor, the pioneer of the personal computer revolution, “getting information off the internet is like taking a drink from a fire hydrant. ”The Internet is transforming the way we share and disclose personal information. In order for insurance professionals to obtain optimal results in litigation, be it a subrogated, defence or coverage action, it is important to be aware of the vast amount of potentially relevant information available online, and to stay alert for new developments in web-based technologies. If you have not heard of blogs, Twitter, Flickr, Internet communities, Wikipedia, cyber mobs, and other current trends, you are already “out of date” and could be missing out on key sources of relevant information. Cyberspace awaits – boldly go.
Footnotes
1. This appears to be an unreported decision, although the details are provided in a number of online articles. The defendants, Carmel Rita Corbo and Gordon Kingsley Maxwell Poyser failed to keep up the repayments on $150,000 they borrowed from MKM in 2007 to refinance the mortgage on their Kambah townhouse. It seems that the news of the default judgment got out before the lawyer, Mr. McCormack, had the opportunity to serve the papers. The couple’s Facebook profiles disappeared from the social networking site. See: “Facebook okay for serving court documents: Australian Court,” National Post (Wednesday, December 17, 2008) http://www.nationalpost.com/news/world/story.html?id=1084050; Rod McGuirk, “Aussie Court OKs Using Facebook for Serving Lien,” ABC News (December 16, 2008) http://abcnews.go.com/International/wireStory?id=6470258; Bonnie Malkin, “Australian couple served with legal documents via Facebook,” Telegraph (December 16, 2008), http://www.telegraph.co.uk/news/newstopics/howaboutthat/3793491/Australiancouple-served-with-legal-documents-via-Facebook.html.
20. A party is required to prepare a list all the relevant documents, although the precise nature of the list will depend on the province. For example, in Ontario, the list of documents must be set out in an affidavit sworn by the party: Rule 30.03, Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
23. Knight v. Barrett, 2008 NBQB 8 (CanLII) at para. 7 [“Knight”].
24. For example, Hollingsworth v. Ottawa Police Services Board, [2007] O.J. No. 5134 (S.C.J.) (A plaintiff’s entry on his Facebook page wherein he described how he became intoxicated on public occasions was used to contradict his claim of unlawful arrest); Pawlus c. Hum, [2008] J.Q. No. 12565 (J.C.Q.) (A landlord terminated a lease because of loud noises. The apartment would, on occasion, become a “fraternity house”. In reaching the conclusion that the tenant did not fulfill his obligation as a renter, the Board examined evidence which included pictures published on the Fraternity’ Facebook site). See also Goodridge (Litigation Guardian of ) v. King, [2007] O.J. No. 4611 (S.C.J.); (C.M.) v. R (O.D.), 2008 N.B Q.B. 253.
25. Weber v. Dyck, [2007] O.J. No. 2385 (S.C.J.).
26. [2007] O.J. No. 5539 (S.C.J.) [“Kourtesis”].
27. United Services Funds v. Carter (1986), 5 B.C.L.R. (2d) 222 (B.C.S.C.), leave to appeal dismissed (1996), 5 B.C.L.R. (2d) 379; M.(A.). v. Ryan (1994), 98 B.C.L.R. (2d) 1 B.C.C.A., aff’d [1997] 1 S.C.R. 157.
28. Leduc, supra, note 6.
29. Murphy, supra note 21.
30. Leduc, supra note 6.
31. Ibid, at paras. 31-32 & 35.
32. R.C.P. Inc. v. Wilding, [2002] O.J. No. 2752 (Master) at para. 12., Leduc.
As users constantly update their Facebook and other social networking profiles, they may be unwittingly doing something else as well: creating a cache of evidence for a future adversary to use against them in discovery and at trial. Trial courts have increasingly allowed parties to discover the private portions of social networking sites when doing so would likely lead to the disclosure of admissible evidence.[1] In the common scenario, a party observes information on the public portion of their adversary’s profiles that tends to undercut that adversary’s claims—such as pictures of a plaintiff skiing after claiming to have devastating injuries—and present such information to the court as the “factual predicate” that establishes the potential relevance of the private profile.[2] While most courts will not allow a party to simply conduct a “fishing expedition” into their adversary’s private digital lives, nor will they declare such information categorically undiscoverable.[3]
Join the forum discussion on this post
