Information disseminated through social media platforms such as Facebook and LinkedIn is of growing utility in litigation matters. Evidence obtained from social media accounts by way of discovery preservation and production orders has significantly strengthened the positions of litigating parties. This should come as no surprise as individuals routinely “post” messages, thoughts, pictures and experiences on these platforms, leaving a wake of evidence in the process.
There has been marked development in this area of law in Canadian jurisprudence. To date, Courts and Tribunals have, among other things, ordered the preservation and production of entire social media accounts, dismissed wrongful dismissal claims based in part on the disparaging nature of comments posted online, and considered social media evidence against claims of the loss of enjoyment of life and the inability to work. However, the Courts are cognizant of the private nature of this information and have been careful to balance the probative value of this evidence against the privacy interest of the social media user. Generally, the Courts have resolved this tension by making a determination of how “private” the social media account is through the application of a number of factual indicia.
In the recent case, Garacci v. Ross, the Ontario Superior Court refused to grant an order requiring a plaintiff in a personal injury case to produce approximately 1,100 photographs from the private portion of her Facebook account. This case informs civil litigants of the view that courts may take respecting the relevance of and obligation to disclose information available on social media websites. While the plaintiff in Garacci escaped disclosure of her private “photo album”, the court only arrived at this conclusion after a very thorough investigation of the relevance of the photographs. The court suggests that the threshold for establishing relevance of information on social media websites is not high.
On January 29, 2008, the plaintiff was struck by a vehicle operated by the defendant as she was walking on the side of a roadway in Courtice, Ontario. The plaintiff brought a personal injury action alleging that as a result of the accident she sustained serious and permanent injuries to her left leg and ankle. The plaintiff claimed significant damages, including a claim for alleged loss of enjoyment of life and amenities.
During discovery, the plaintiff gave extensive evidence about the impact of the accident on her social life. Rather than claiming total disability, the plaintiff claimed that the accident has prevented her from pursuing certain high impact athletic activities that she had previously enjoyed (ex. soccer, water skiing, competitive dancing and snowboarding).
The defendant discovered 12 photographs on public areas of Facebook that he claimed depict the plaintiff “enjoying life” (ex. socializing with friends, having dinner and drinks, kneeling on the ground, climbing a tree and play wrestling). The defendant tried to convince the court that the remaining 1,100 private photographs should be disclosed as they must include photographs of the plaintiff engaged in similar enjoyable activities.
The court did not necessarily disagree with the inference the defendant asked it to make; rather, the court denied the defendant’s request by reiterating that the test for disclosure is “relevance to the matters in issue in [the] action.” The court determined that none of the 12 public photographs actually depict the plaintiff engaging in the kind of significant physical activity that the plaintiff claimed to be unable to perform. Thus, the court instead found that the 12 public photographs were consistent with the plaintiff’s evidence.
It is important to note that the court did not deny the disclosure request based any kind of distinction between private documents held on social media websites and private documents held elsewhere. Rather, the court simply denied the disclosure request because the defendant failed to demonstrate how the 1,100 private photographs were relevant to the matters in issue and, in the court’s view, the very broad disclosure request amounted to “nothing more than a high tech fishing expedition.”
As alluded to above, the first significant aspect of the case is that the court did not make any kind of distinction between private documents held on social media websites and other types of private documents. One commentator analogized the refusal to allow social media fishing expeditions to “refusing to allow an adverse party to look through a party’s filing cabinets to see if there is anything relevant there.” The court explicitly refused the disclosure request based on an assessment of relevance.
The second significant aspect of the case requires a closer look at the process the court used to arrive at its view that the 1,100 private photographs were not relevant. While the court claimed to have denied the disclosure request based on its conclusion that none of the 12 public photographs “actually show [the plaintiff] engaged in any kind of significant physical activity,” the court actually took two important steps to ensure its conclusion was correct. First, a court clerk reviewed all 1,100 private photographs and concluded that there were no photographs depicting the plaintiff engaging in significant physical activity. Second, the court itself randomly reviewed approximately 10% of the 1,100 private photographs and confirmed the same.
As has already been pointed out, this case sets a high threshold for the level of diligence required in order to convince a court that private information held on social media websites is not relevant. Moreover, this begs the question of whether such a threshold would be required if the private documents were actually held in physical photo albums located in the plaintiff’s basement? Presumably not. Thus, although the court did not explicitly distinguish private documents held on social media websites from other privately held documents, perhaps the ease of access of social media documents already stored online does in reality affect the way the court assesses relevance. Reviewing the documents in this case was as simple as changing a privacy setting on the plaintiff’s Facebook account – much easier than hauling hundreds of physical photo albums from the plaintiff’s basement to chambers.