Cross-examination of plaintiff allowed on supplementary affidavit of documents regarding content of Facebook profile
Leduc v. Roman, 2009 CanLII 6838 (Ont. S.C.J.).
Existence of Facebook profile allowed for inference that private portion of profile may contain relevant material
The parties in this case were involved in a motor vehicle accident in 2004. The plaintiff subsequently initiated an action claiming that the defendant’s negligence resulted in a lessened enjoyment of life. Sometime after Mr. Leduc’s examination for discovery, defence counsel discovered that the plaintiff maintained a Facebook account. The privacy settings on the account, however, restricted access to his profile, resulting in only the plaintiff’s name, city of residence and profile photograph being accessible to the defendant.
Under Rule 30.06 of Ontario’s Rules of Civil Procedure, a court may make certain orders, such as for the production of a document for inspection or the service of a further and better affidavit of documents, where it believes that relevant documents have been omitted from a party’s affidavit of documents. Relying on Rule 30.06, in June 2008 the defendant moved for, among other things, the production of all information on the plaintiff’s Facebook profile and the production of a sworn supplementary affidavit of documents. While the plaintiff consented to producing a supplementary affidavit of documents, the production issue remained unresolved.
At the motion level, while Master Dash recognized that Facebook profile pages are “documents” for the purposes of the Rules of Civil Procedure, he refused to order the production of the Facebook pages. According to Master Dash, the defendant’s request, based simply on the evidence that Facebook profiles typically include such things as photographs, was “clearly a fishing expedition.”
On appeal, Justice Boswell considered the case of Murphy v. Perger, [2007] O.J. No. 5511 (Ont. SCJ), which also dealt with the production of a limited-access Facebook profile. In Murphy, the Court had ordered production of documents posted on the plaintiff’s private profile based on photographs on the publicly-accessible portion of her profile showing the plaintiff engaged in various social activities. The Court in Murphy found that the nature of Facebook and the photographs existing on the public portion of the plaintiff’s profile made it reasonable to conclude that the private portion of the profile would also contain photographs.
The Superior Court in the immediate case agreed with the Court in Murphy that the presence of content on a party’s publicly-accessible profile would allow for the inference that similar content exists on the private portion of a profile. Taking it one step further, however, the Court found that even in cases where there is no publicly-accessible profile,
a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook’s applications to make personal information available to others.
The Court disagreed with the categorization of the defendant’s request as a “fishing expedition” even though there existed no evidence of relevant content beyond the mere existence of the plaintiff’s Facebook profile. While the Court disagreed that production should extend to all material on such a profile, the Court found that a party that discovers a profile following examination for discovery “should enjoy some opportunity to ascertain and test whether the Facebook profile contains content relevant to any matter in issue in an action.” This would include requiring the preservation and printing out of posted material, the swearing of a supplementary affidavit of documents identifying relevant Facebook documents and where few or no documents are disclosed, permitting a cross-examination of documents. Ultimately, therefore, the Court allowed the appeal and granted leave to the defendant to cross-examine the plaintiff on his supplementary affidavit of documents with respect to the nature of material on his Facebook profile.
Of particular note to counsel, the Court found that
[g]iven 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.
While the court’s findings would obviously apply to other similar social networking sites, it is unclear whether they would extend beyond such websites. For example blogs have traditionally been more focused on the exchange of ideas rather than the sharing of photographs and it is questionable whether the existence of a private blog would lead to the inference that relevant material existed on the site.
