...counsel for the defence brought a motion before Master Dash, asking for (i) the interim preservation of all information contained on [the plaintiff's] Facebook profile, (ii) production of all information on the Facebook profile, and, (iii) the production of a sworn supplementary affidavit of documents.
On a preliminary ruling, the Master did order that the plaintiff copy and preserve every page from his Facebook profile until the hearing of the main motion. The plaintiff agreed to produce a supplementary affidavit of documents.
The Master refused to order the plaintiff to produce the pages from his Facebook profile that were not publicly accessible. He characterized the motion as a “fishing expedition” and focused on the fact that the defendant was unable to adduce any evidence as to what might be found on the site.
However, the Master did find that photographs or other information posted on the site, that showed the plaintiff’s activities or his “other enjoyment of life”, should be listed in the supplementary affidavit of documents that he had agreed to deliver. The Master was quite satisfied that the pages on the site constituted “documents” and that they lay within the plaintiff’s control.
....[ On appeal] Justice Brown came to a different conclusion. He thought that Facebook, by its very nature, is a vehicle by which people make available to others information about themselves, “what they like, what they do, and where they go, in varying degrees of detail”. He did not think that the defence had been on a “fishing expedition”, saying, “[i]t is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc [the plaintiff] has been able to lead his life since the accident.”
In the result, Justice Brown granted leave to the defendant to cross-examine the plaintiff on his supplementary affidavit of documents, about the nature of the content that the plaintiff had posted on his Facebook site.
The case is interesting in a couple of respects. Most obviously, it deals with the relatively recent phenomenon of how social networking websites are to be treated for purposes of discovery.
But more fundamentally, both Master Dash and Justice Brown seem to have taken it as a given that photographs of the plaintiff in a personal injury action are documents within the plaintiff’s control and that any such photographs that are demonstrative of the plaintiff’s lifestyle (assuming that that is an issue in the litigation) should be disclosed in the affidavit of documents. That would be true whether the photographs are printed or electronic and whether they are posted on the internet or exist only on a personal hard drive.
The entire article is well worth reading - see: Plaintiff’s Facebook Pages Not A “Fishing Expedition” by Defence, Judge Rules
- Garry J. Wise, Toronto