Monday, March 23, 2009

Facebook, Disclosure, Leduc and Ontario Employment Law

Management lawyer Michael Fitzgibbon picks up on our March 4 discussion of the Leduc case, in which an Ontario personal injury Plaintiff was essentially ordered to make full disclosure to the defence of the contents of his private, friends-only Facebook pages.

Mr. Fitzgibbon contends the case has enormous implications for employment law litigation:
This is a very important case for those who practice in the area of employment law.

For example, an employee is terminated, sues and claims damages for wrongful dismissal.  Mitigation is always an issue in these cases.  If the former employee maintains a Facebook account or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.  

There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.

While Mr. Fitzgibbon may have taken a small leap of faith in his suggestion that Facebook postings are likely to be generally relevant on the specific issue of mitigation, his ultimate conclusion is sound.

Online postings at social media sites are now fair game for disclosure in Ontario civil litigation.

- Garry J. Wise, Toronto

Update - March 24, 2009:  Law.com also covers Leduc today - see: Electronic Discovery and Facebook

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