Electronic Discovery and Facebook
In responding to discovery requests, must clients disclose information posted on Facebook, Flickr, Twitter and other similar social media sites, even where they've blocked their accounts from public access? Absolutely, says Canadian decision Leduc v. Roman, 2009 CanLII 6838 (ON S.C.), a case out of the Superior Court of Justice in Ontario, which discusses the issue in great detail. (H/T Simon Chester, Slaw)
Leduc involved a personal injury case in which the plaintiff claimed damages for loss of enjoyment as a result of defendant's negligence. At some point in discovery, the defendant learned that Leduc maintained a Facebook account and sought production of Leduc's Facebook pages. The discovery master denied the motion, finding that the defendant failed to establish the relevance of the Facebook pages to the question of whether Leduc's enjoyment of life had been diminished. In addition, the master expressed some concerns regarding Leduc's privacy.
On review, Judge Brown disagreed. First, the judge disposed of the privacy issues:
A party who maintains a private or limited access Facebook profile stands in no different position than one who sets up a publicly available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action.
The judge also found that while Facebook profiles were not presumptively relevant, the defendant should have been given an opportunity to inquire further on this point:
[M]ere proof of the existence of a Facebook profile does not entitle a party to gain access to all materials placed on that site. Some material may relate to matters in issue; some may not...Most often [relevant] evidence will emerge from questions asked on a party's examination for discovery about the existence and content of the person's Facebook profile. Where the party's answers reveal that his Facebook profile contains content that may relate to issues in an action, production can be ordered of that relevant content.
Finally, given the ruling, the court cautioned lawyers to put their clients on notice:
Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.
Though this decision comes from a Canadian court, my guess is that U.S. courts (state and federal) would adopt a similar approach. Are you familiar with any American cases that address the issue of Facebook in discovery? And how are you advising your clients about use of social media while a case is ongoing?
Posted by Carolyn Elefant on March 24, 2009 at 02:20 PM | Permalink
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