An Obligation to Discuss Facebook During Discovery

Hat tip to my young – and learned – friend John Salloum for alerting me to para 28 of Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) which suggests that there may be a new standard of care for Ontario lawyers emerging when advising their clients about litigation against an individual.

The issue in the story discussed by CTV arose in the context of a personal injury case where Facebook was specifically discussed during the discovery process, but the ruling by Justice David Brown of the Ontario Superior Court of Justice appears to go beyond the narrow context in the case before him.

According to Justice Brown:

“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.”

Arguably, this could even be extended to include YouTube, Twitter, Flickr, MySpace, and assorted other sites frequented by the digerati if you had a tech-savvy litigant (or, we suppose, anyone under 25…).

On the other hand, doesn’t it take more than a single decision to shift the borders of required professional practice?

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Comments

  1. Also see Will McNair’s article on the subject.

  2. To my mind, the obligation to discuss a client’s postings on Facebook, YouTube, MySpace, et al. is pretty clear under the Rules.

    30.01 (1) In rules 30.02 to 30.11,

    (a) “document” includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form;

    Data and information in electronic form . . . Hmmm. Sounds like Facebook to me. Or anything else that a litigant might have put up on the web.

    Perhaps I’m missing something, but if required professional practice means that lawyers must produce paper documents, as defined in Rule 30, why not their electronic equivalents, also as defined in Rule 30?

    The question to ask with any Web 2.0 content is not “is this a document?” but “is this relevant?”

  3. This is very interesting, especially when paired with the (somewhat) recent Guidelines for Practising Ethically
    with New Information Technologies
    from the Canadian Bar Association. This is from page 7 of the document:

    To meet the ethical obligation for competence in Rule II, lawyers must be able to recognize when the use of a technology may be necessary to perform a legal service on the client’s behalf, and must use the technology responsibly and ethically.

  4. Sorry, a reader brought to my attention that the link above didn’t work. Try this.

  5. I also came across this article recently on an unrelated search, by Pamela D. Pengelley of
    Cozen O’Connor (Toronto).

  6. Apparently, the Philadelphia Bar has opined that one cannot be devious about getting the information. Thus, it may be incumbent on the inquirer in a deposition to ask for copies of the Facebook, LinkedIn account information, etc.

  7. The Leduc case cited by Simon C mentions several other cases. There was a decision lately that did not require the party to be examined to disclose the entire content of his computer (which was said to be like searching a filing cabinet rather than the relevant file) but did require disclosure of the time of logging onto and off Facebook (so the other side could tell who had made the posts at the known relevant times.)

    There is some privacy interest at work in discovery questions (as shown by the implied undertaking, for example) but not many. A compete fishing expedition may be denied. A BC case refused to require disclosure of all metadata in a party’s hard drive and all sites visited in a given period. Desgagne v Yuen 2006 BCSC 955