In two Ontario cases, the courts considered whether the private contents of a Facebook® profile had to be produced in the context of litigation. The decisions, Murphy v. Perger and Leduc v. Roman, add to a growing body of case law involving social networking sites and the need to disclosure relevant webpages and photographs.

Under the Ontario Rules of Civil Procedure, parties have a duty to disclose ? and, if requested, produce for inspection any relevant “documents” in their possession. The case law has established that photographs and webpages are documents and therefore must be disclosed.

In Murphy, the defendant moved for production of the plaintiff’s Facebook® webpage. The plaintiff had been involved in a motor vehicle accident, and claimed general damages for the resulting pain and suffering and loss of enjoyment of life. The defendant contended that photographs on the plaintiff’s private Facebook® page would be relevant to the proceeding and should be produced.

Before addressing the plaintiff’s privacy concerns, the court assessed whether the documents in question were relevant to an issue in the proceeding. In this case, the court noted that the plaintiff had previously served photographs taken of her prior to the accident, and therefore, she obviously felt that some photographs were relevant to her damages claims.

In the court’s view, it was reasonable to conclude that there would likely be relevant photographs on the plaintiff’s private Facebook® page because (i) www.facebook.com is a social networking site where users post a large number of photographs, and (ii) the plaintiff’s public webpage contained photographs.

Having disposed of the relevance issue, the court then addressed the plaintiff’s privacy argument. The judge ruled that any invasion of privacy was minimal and was outweighed by the value of the photographs in the litigation. The judge went on to note that "The plaintiff could not have a serious expectation of privacy given that 366 people had been granted access to the private site." In the end, the judge ordered production of the copies of the webpages posted on the plaintiff’s private Facebook® site.

More recently, the Ontario Superior Court seems to have gone one step further. In Leduc, the plaintiff didn’t have a public Facebook® page with photographs from which the court could infer that his private profile might also have photographs. Only his name and a head shot were publicly visible; he had restricted access to his posted material to his Facebook® friends.

As in Murphy, the plaintiff and the defendant had been in a car accident. The plaintiff claimed that the defendant’s negligent driving had lessened his enjoyment of life and the accident had caused limitations to his personal life.

Once the defendant became aware of the plaintiff’s Facebook® profile, she sought an order requiring the plaintiff to preserve all the information on his Facebook® profile and to produce all the pages. The latter request was denied by the presiding master, who characterized it as a "fishing expedition." In his view, drawing an inference about the content likely to be found on a specific Facebook® profile from a "typical" Facebook® profile was pure speculation.

On appeal, the judge emphasized that while the plaintiff was under an obligation to produce all relevant documents in his possession, the onus for reviewing documents to determine their relevance rests initially with the party bearing the obligation to produce. A motion for production requires real evidence that potentially relevant undisclosed documents exist.

The judge observed that people use Facebook® to share with others personal information about themselves. Therefore, the judge concluded, it was reasonable to infer that the plaintiff’s Facebook® profile likely contained some content relevant to the matters at issue (specifically, to the state of his life after the accident).

The fact that the plaintiff’s site was private did not alter his disclosure obligation: According to the judge, "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 did accept that mere proof of the existence of a Facebook® profile does not entitle a party to access to all of the material placed on the site, and acknowledged that he was concerned about the breadth of the defendant’s request for production.

As the defendant did not learn of the plaintiff’s Facebook® profile until after discovery had been completed, the judge allowed the defendant to cross-examine the plaintiff on his supplementary affidavit of documents about the nature of the content he posted on his Facebook® profile.

McCarthy Tétrault Notes:

These cases demonstrate that, if personal information on a social networking site is relevant, it must be disclosed in litigation — regardless of an individual’s privacy settings. Litigation counsel are obliged to ask their clients about Facebook® and other social networking site content to ensure that it is preserved, if it is relevant to matters in issue