Law Times

Page 12 July 10, 2017 • law Times www.lawtimesnews.com FOCUS Survey suggests increase in lawsuits related to shared content Social media evidence plays important role in litigation BY MICHAEL MCKIERNAN For Law Times L awyers need to brush up on their social media skills to properly repre- sent their clients as liti- gation involving evidence from sites such as Facebook and Twit- ter surges, according to a Toron- to litigator. In a recent survey by Robert Half Legal, more than half of the lawyers surveyed reported an increase over the last two years in lawsuits related to postings, images and data found on social media and mobile devices. And more than a quarter saw a spike in cases involving information stored on a work-related device. But Ron Podolny, a class ac- tions litigator with Siskinds LLP in Toronto, says he doesn't believe lawyers are paying at- tention to these relatively new sources of evidence often enough when it comes to discus- sions over discovery. "There is plenty of case law establishing that these are docu- ments like any other, but I'm not sure everyone turns their mind to them when a new client comes through the door," he says. Even those with a basic aware- ness of which sites and programs to search could still disadvan- tage their clients if they don't know how they work, Podolny adds. Without some familiarity of issues such as privacy settings, lawyers risk missing important evidence held by either side of the dispute. "Platforms keep changing, but whether you're acting for the plaintiff or the defendant, it's something you need to get up to speed on," Podolny says. "Oth- erwise, it does a disservice to ev- eryone: first to the court, because some of these postings are going to be probative and relevant; and second to clients, because I'd question whether you're fulfill- ing your professional obligations under the Rules of Professional Conduct if you're only producing traditional, old-style documents." Puneet Tiwari can attest to the increasing prevalence of so- cial media and mobile data evi- dence in Canadian courts. As an articling student and associate at a small Toronto firm, he was re- sponsible for client intake, where he would often receive emailed screenshots or a stack of print- outs of messages received via text, WhatsApp, Facebook and a variety of other platforms. Processing and keeping track of different platforms can quickly become unmanageable, Tiwari says, noting that a three- minute conversation conducted over SMS can easily turn into 20 pages of printed text, which may then have to be re-digitized to send to opposing counsel dur- ing discovery. "It's all very redundant and frustrating," Tiwari says. To tackle the problem, he and his software engineering co-founder developed Evichat, an app designed for extracting and reviewing mobile-based evi- dence, which Tiwari characteriz- es as an "e-discovery-lite" system. Jelena Buac, a member of the family law practice group at London, Ont.'s McKenzie Lake Lawyers LLP, says only a minor- ity of her matters progress with- out touching on mobile data or social media evidence. "Sometimes, family law is less about the hard facts. There's a lot of he-said, she-said, so messages and postings can be used to back up or contradict what people are saying in court," Buac says. To avoid ongoing problems, she urges clients not to refer to their family law matters on social media sites such as Facebook, and is even considering incorpo- rating a warning about the sub- ject into her retainer letter. "People tend to view social media as an outlet for their grievances, but I tell them it's better to be silent when it comes to their litigation," Buac says. "If you're saying in court filings that you're able to communicate with your ex-spouse courteously, but they produce a text message where you used foul language about them, it could be used to debunk your credibility." For example, in the 2015 case of Tran v. Tran, Ontario Supe- rior Court Justice Frances Kite- ley ordered a trial on the issue of child support after the mother used Instagram and Facebook posts to bolster her claim that the father was employed and had bought a sports car rather than pay support. And in an older case; B.V. v. P.V., Ontario Superior Court Jus- tice William Hourigan relied on the evidence of a mother's Twitter feed over her testimony in court when it came to the issue of how heavily she drank. By referencing "making inappropriate phone calls while intoxicated and being hung over," the postings made it "clear that she engages in a pat- tern of excessive consumption of alcohol," despite her claims to the contrary, Hourigan wrote. Podolny says the nature of social media platforms throws up new ethical issues for lawyers in their dealings with clients. He says counsel should feel com- fortable instructing clients to avoid posting pictures of state- ments that may harm their le- gal case. At the other end of the scale, advising the destruction of information is clearly unethical, but that still leaves a large grey area in the middle. "I think there's still a debate over what to do about docu- ments that were previously posted but that a client may wish to take down or block access to once they have launched a case," Podolny says. LT Ron Podolny says he doesn't believe lawyers are paying enough attention to evidence from social media and mobile devices when it comes to discussions over discovery. Untitled-4 1 2017-06-29 3:17 PM

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