Thursday, April 09, 2009

B.C. Court: Facebook Usage Logs Must Be Disclosed by Personal Injury Claimant

A March 5, 2009 British Columbia decision has greatly expanded the scope and nature of Facebook usage information that Plaintiffs in personal injury claims may be required to disclose.

In Bishop v. Minichiello the B.C. Supreme Court has ordered production of computer logs from a Plaintiff's hard drive that will purportedly reveal details as to the wee hours Facebook habits of the injured Plaintiff.  

B.C. personal injury lawyer, Erik Magraken, reported on the Court's ruling at ICBC Law Blog:

Reasons for judgement were released today by the BC Supreme Court (Bishop v. Minichiello) dealing with this issue.  In today’s case the Plaintiff allegedly suffered a brain injury as a result of the negligence of the defendants.  The Defendants wished to analyze the Plaintiff’s computer hard drive to ‘determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning‘.  The Plaintiff refused to produce his computer hard-drive and this resulted in a Court motion seeking an order compelling the Plaintiff to do so.

Mr. Justice Melnick granted the motion and ordered that ‘the parties agree on an independent expert to review the hard drive …to isolate and produce to counsel…the information sought or a report saying that the information sought is not retrievable.’.

In his reasons, Mr. Justice Melnick considered the Plaintiff's legitimate privacy interests, the fairlyly narrow scope of the disclosure requested, and the relevance of the information that would be revealed by granting the order requested:
[55]            It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents.  This sentiment was approved in Chadwick.  Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant.  If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged). 
;56]         ...The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed.  This is because he spends a substantial amount of time on Facebook chatting with this friend.  The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.
...[57]            The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents.  Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.  In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege.  For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff’s family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case.  I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed. 
The Bishop decision should be considered together with February's Ontario Superior Court ruling in Leduc v. Roman, in which disclosure of a Plaintiff's non-public Facebook content was similarly ordered.  

The Ontario Court found in Leduc that it was "reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.”

As we noted last month in Facebook, Disclosure, Leduc and Ontario Employment Law, online postings at social media sites may well now be fair game for disclosure in Ontario civil litigation. 

With the B.C. ruling in Bishop, it is clear that the Facebook disclosure trend in becoming a national one.

Importantly, Bishop has extended the potential scope of social media disclosure that may be required beyond mere content to include production and discovery of metadata and user logs where that information may be directly relevant to factual matters that are raised in the litigation. 

In other words, in terms of potential disclosure by Plaintiffs, it no longer is just about what their Facebook and similar pages say - now, it might also be about when and how they use these sites.

The broader question, still unconsidered, is whether this ever-increasing potential for forensic examination of  Plaintiffs' personal computers and computing histories in civil court actions may have a chilling effect on the willingness of some individuals to assert their entitlements in Canada's courts, at all?

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