Disclosure of Social Media Information in Civil Litigation

So much of our lives today are available online: Facebook, Twitter, Instagram, YouTube, text messages.

At the same time, I wonder whether our requests for documents in civil litigation have kept with the times. E-mail requests now are routine. But requests for social media information seem (to me at least) to be comparatively rare.

The issue recently arose in an Ontario Superior Court decision called Garacci v. Ross, 2013 ONSC 5627. The defendant sought to require the plaintiff to produce 1,100 photographs from her Facebook account. The defendant argued the pictures were relevant to the plaintiff’s claim that an accident had prevented her from participating in some types of athletic activities. For example, the pictures might show her engaging in these very types of activities.

The Master denied the defendant’s request, leading some to breathe a sigh of relief on behalf of privacy.

I think the opposite is true. Consider how the Master arrived at the result. The plaintiff did two important things. First, she had a law clerk swear an affidavit, saying that the clerk had reviewed all of the pictures and saw no pictures of the nature sought by the defendant. Second, the Master hearing the motion actually appeared to have been given access to the plaintiff’s Facebook account to review a random selection of pictures. He stated he randomly reviewed approximately 10% of the 1,100 photographs to conclude the pictures were not consistent with the defendant’s theory.

The plaintiff in Garacci may have dodged a bullet, but the decision sets a high threshold for the standard a litigant must meet to convince the court the information is not relevant. It sets the scene for similar future broad requests for social media information in all different kinds of litigation. Defamation, libel, negligence, contract and even some kinds of commercial litigation could involve these types of requests.

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Comments

  1. This is not a new issue in our courts. See here, for example, a discussion from the spring of 2009, which itself referred to earlier discussion on Slaw and in the courts.

    Information on social media is no different from any other information. If it’s relevant to civil litigation, then a party has to disclose it. If it’s not relevant, then a party does not have to disclose it (subject in all cases to reasons not to do so, notably privilege – but notably not privacy on its own).

    The debate in cases like the one cited is really whether there is reasonable cause to doubt the party’s assertion of what relevant documents he/she has, and what to do about it. Ontario courts have generally refused to allow fishing expeditions on social media sites on the speculation that there may be something out there that the party has not disclosed. This is the same as refusing to allow an adverse party to look through a party’s filing cabinets to see if there is anything relevant there.

    Nothing about social media changes the issues in discovery cases. Most courts are getting used to that idea, and most counsel. As with any other legal development, some get it more quickly than others.

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