Law Times

Law Times • march 15, 2010 An online resource 1.800.263.3269 Focus On LITIGATION Facebook discovery: and Twitter increasing exponen- tially, the legal risks and rewards appear to be growing as well. In the United States, evi- Is civil litigation in uncharted waters? W BY SUSAN HUGHES For Law Times ith the use of social networking sites like Facebook, MySpace, Hamilton Stewart Storie LLP says of the two cases: "I think Leduc is more authoritative. Schuster is clearly inconsistent with Leduc, and what it appears to do is recognize a privacy inter- est in someone's friends space in Facebook. I don't think that's the prevailing law. "Th e prevailing law is that rel- dence from Facebook has been used increasingly in areas such as criminal justice, family law, and jury selection. As John Brown- ing, a Dallas-based lawyer and author of the forthcoming book Th e Lawyer's Guide to Social Net- working, writes: "Social network- ing sites can provide a wealth of information for lawyers. From educational background and work history to intimate revelations and incriminating video, this digital treasure trove is yours for the taking when ac- cess is unlimited." In Canada, many employers routinely monitor employees' social networking profi les for de- famatory comments about their work environments, while pro- spective employers are known to search public information when doing background checks. On one side of the debate, there's the argument that privacy is be- coming an anachronism. On the other side, there's the reality that people are willingly off ering up intimate details of their lives by posting blogs and photographs. Th e distinction between public and private has surfaced in a couple of recent personal injury cases in Ontario. In Leduc v. Roman, John Leduc was injured in an auto accident and claimed that as a result of the defendant's negligence, his enjoyment of life had declined. Th e court ordered the preserva- tion and production of Face- book material as provided for in the Rules of Civil Procedure. Later, in Schuster v. Royal & Sun Alliance Insurance Co. of Canada, the plaintiff sued her insurance company for com- pensation for injuries suff ered in an auto accident and claimed those injuries aff ected her abil- ity to work and participate in social life. When the defendant learned she had a Facebook page with a private area that allowed access to 67 friends, it sought an ex parte order to prevent her from deleting the content. Th e motion was dismissed on the grounds there was no proof the Facebook account contained relevant evidence. Dan Michaluk of Hicks Morley evant evidence is admissible, and up until the recent Rules chang- es, the standard for production was the semblance of relevance. By defi nition, the semblance of relevance standard is invasive." He adds: "My understanding of the law is that you don't weigh privacy interests in the balance subject to the establishment of a case-by-case privilege. And the standard for establishing a case- by-case privilege is very high. It's based on an overriding public interest in the form of commu- nication. I think it's laughable to suggest that there's a public interest in what goes on behind one's private Facebook space." Th e leading case on the privi- lege issue is M. (A.) v. Ryan, Michaluk notes. "It's a 1997 Supreme Court of Canada case which deals with the production of notes made by a psychiatrist who was interviewing a sexual assault victim, also the plaintiff in the case. Th e court consid- ered whether the privacy issue in those notes overrides the obliga- tion to produce. And it applied a case-by-case privilege analysis to those notes. "Even given the nature of those notes and the importance of the notes to the public interest, it ordered production with certain conditions to protect confi denti- ality. So if you compare that type of communication and the need to obtain psychiatric services to the kind of random chitchat on one Facebook page, there's no comparison. If those notes were produced, how can we possibly make a claim that the pictures of me skiing won't be? Th at's why I think that Leduc is a sen- sible decision." Leduc, in fact, outlines a new duty of care for counsel. As Supe- rior Court Justice David Brown wrote: "Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now in- cumbent on a party's counsel to explain to the client, in ap- propriate cases, that documents posted on the party's Facebook profi le may be relevant to alle- gations made in the pleadings." For Michaluk, the case Untitled-7 1www.lawtimesnews.com Pamela Pengelley of Cozen O'Connor in Toronto believes the interesting issue now, given the changes to the Rules, is the question of relevance. "Th e fi rst big case that got While Leduc is good law, 'I think Schuster is going to be more persuasive,' says Pamela Pengelley. highlights the fact that the per- ceptions of social networking users tend to be so disconnected from what the law of produc- tion requires that "the court feels necessary to make a direc- tion to counsel to cover yourself by having a discussion with cli- ents. If you don't, the other side is not going to have a hard time arguing for a remedial order." a lot of attention was Leduc," she notes. "Justice Brown took the view that these sites were meant to convey information to your social group as giving rise to a presumption that it would contain relevant information in cases where someone was say- ing that their quality of life had been damaged. Th at was con- tentious because previously, the only other case on Facebook had said [that] based on the plaintiff 's public site containing relevant information, then we could infer that the private site might also have relevant information. "So Justice Brown had taken that one step further and said, 'I think you can infer there's rel- evant information just from the site itself.' Other provinces have followed that reasoning." But Schuster involved a dif- ferent factual context, Pengel- ley points out. "Th e analysis was slightly diff erent with the grounding of injunctions, but [Superior Court] Justice [David] Price looked at Justice Brown's decision and said he didn't agree that there was an automatic pre- sumption. Th e plaintiff 's coun- sel has an obligation to tell the plaintiff to disclose all relevant information in the affi davit of documents and, if the plaintiff doesn't disclose a Facebook ac- count in the affi davit, you have to presume it's because there's no relevant information." Overall, Pengelley believes Schuster represents "the last word in Ontario" on the issue. "Now that we have a new test with respect to relevance, there are also more stringent discovery guidelines. Leduc almost seemed too good to be true from a de- fence lawyer's perspective. With respect to drawing an inference of relevance, I think the guide- lines set by the court in Schuster are going to become the norm. Leduc is still good law because they're at the same level, but I think Schuster is going to be more persuasive." LT PAGE 9 Congratulations to the winners of the 2010 Harold G. Fox IP Moot Dimock Stratton, as founding sponsor, is proud to announce the winners of Canada's intellectual property law moot, which was held on February 19th and 20th advocacy skills in handling a challenging problem in the area of patent litigation. Congratulations! Harold G. Fox Cup for Best Mooting Team Alain Laplume and Victoria Au, Queen's University Donald F. Sim Award for Best Oral Advocate Michael Bokhaut, University of Alberta Gordon F. Henderson Award for Best Factum Writers Alexander Gloor and Nathan Fan, Osgoode Hall Law School Thanks to all the participants, panelists and sponsors. Visit ipmootcanada.ca for more information. Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com 3/2/10 4:06:44 PM in Toronto. All participants showed strong

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