News media have paid significant attention to court orders requiring production of relevant documents from Facebook and social media sites in the course of litigation. As described in my recent post, the Ontario Information and Privacy Commissioner has recently published a booklet on privacy and reference checks.
From the Canadian litigator’s perspective, all the fuss might be difficult to appreciate. In Ontario, for example, the Rules of Civil Procedure require that litigants must disclose to all of the parties to the litigation the existence of every relevant document in their possession, power or control and must produce to the other parties all of those relevant documents that are not privileged.
A document is defined by the Ontario Rules of Civil Procedure to include data and information in electronic form. Electronic information will be in the power of a party if that party could obtain a copy of it. So, pictures and posts accessible through your social media account are documents and within your power to produce. The only question is whether those posts are relevant.
Photographs and posts to social media accounts may be relevant to litigation in a number of ways. In a personal injury or long-term disability case, they may suggest that claims of being unable to enjoy life or to work are exaggerated or false. They may suggest that a litigant was in a location or with people as alleged and contrary to protestations otherwise. They may contain evidence of defamation or the truth of what might otherwise be defamatory statements.
Once litigation has been commenced or is contemplated, litigants and potential litigants should be careful, however, that they do not take steps to “cleanse” their social media accounts. It often comes as a surprise to litigants that they are required to preserve physical and electronic documents – even if that material might be unhelpful to their case. However, the preservation obligation will often begin even before litigation has been commenced. Once a demand letter is drafted or received, or legal advice is sought with respect to potential litigation, a potential litigant may be required to preserve evidence. Therefore, individuals involved in litigation or where litigation is a reasonable possibility should seek legal advice on their obligations.
Intentionally destroying evidence is called spoliation. Spoliation occurs where a party (the spoliator) has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. In Canada, spoliation usually produces an adverse inference that the evidence would have been unhelpful to the spoliator and may result in sanctions.
A recent U.S. case illustrates some of the pitfalls and, in the U.S. sanctions, for spoliation and social media (Lester v. Allied Concrete Co., Case No. CL09-223 (Va. Cir. Ct. Sep. 1, 2011), and Lester v. Allied Concrete Co., Case Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011):
- The plaintiff was the husband of a woman who was killed in an automobile accident. He sued the truck driver and the driver’s employer and initially won a substantial damage award.
- During the discovery process for his trial, he was asked about his Facebook account. The defendants had produced a photo justifying the request that was apparently taken after his wife’s death and showed him holding a beer can and wearing a “I [heart] hot moms” t-shirt.
- The plaintiff, with the lawyer’s advice, deleted the Facebook account and responded that he did not have a Facebook account at the time of responding to the discovery requests.
The Virginia court was not impressed. It cut the damages award to the plaintiff in half and awarded cost sanctions against both the plaintiff and his lawyer.
In Canada, courts are reluctant to make similar awards preferring to remedy the wrong in other ways, such as providing procedural remedies for additional discovery and drawing adverse inferences that the destroyed documents would have been unhelpful to the party who destroyed them. Courts can also award cost sanctions. To date, however, courts have not awarded damages against the spoliator. Nevertheless, once litigation is contemplated – resist the urge to press delete!